Holding

A magistrate has jurisdiction under Section 167(2) of the Criminal Procedure Code to authorise detention of a person arrested under Section 35 of FERA or Section 104 of the Customs Act.

Summary

The Directorate of Enforcement arrested Deepak Mahajan under Section 35 of the Foreign Exchange Regulation Act (FERA) and produced him before a magistrate, who ordered his judicial remand under Section 167(2) of the Criminal Procedure Code (CrPC). Mahajan challenged the magistrate's jurisdiction, relying on the earlier decision in Union of India v. O.P. Gupta which held that a magistrate could not remand a person arrested under FERA. The Supreme Court examined the language of Sections 167(1) and (2) of the CrPC, the provisions of FERA and the Customs Act, and the purpose of the statutes, concluding that the special‑act provisions replace the procedural requirements of Section 167(1). It held that the term "accused" in Section 167(2) is to be given its widest meaning, covering any person arrested and produced before a magistrate, irrespective of whether the arresting officer is a police officer. Consequently, the magistrate possessed the power to authorise detention of the arrestee under Section 167(2). The Court set aside the High Court’s decision and allowed the appeal, reaffirming the Gupta ruling.

Issues considered

Whether a magistrate has jurisdiction under Section 167(2) of the CrPC to authorise detention of a person arrested under Section 35 of FERA or Section 104 of the Customs Act.
Whether the provisions of FERA and the Customs Act substitute the requirements of Section 167(1) of the CrPC.
Whether the term "accused" in Section 167(2) includes a person arrested by an officer other than a police officer.

Legislation cited

Code of Criminal Procedure, 1973s. 167(1), s. 167(2), s. 173, s. 190, s. 202(1), s. 202(3), s. 26(b), s. 273 (explanation), s. 4(2), s. 5, s. 57
Customs Act, 1962s. 104(1), s. 104(2), s. 104(3), s. 104(4), s. 135, s. 137, s. 151
Foreign Exchange Regulation Act, 1973 (FERA)s. 35(1), s. 35(2), s. 35(3), s. 45, s. 46, s. 62

Subjects

Criminal Procedure CodeSection 167Magistrate jurisdictionForeign Exchange Regulation ActCustoms ActJudicial custodyStatutory interpretationArrestAccused

Judgment

DIRECTORATE OF ENFORCEMENT A
v.
DEEPAK MAHAJAN AND ANR.

JANUARY 31, 1994

[S. RATNAVEL PANDIAN AND K. JAYACHANDRA REDDY, JJ.] B

: Criminal Procedure Code 1973: Sections 167(1) and (2)--Person ar-
rested under Special Act viz. FERA or Customs Act and produced before a
Magistrate-Jurisdiction to authorise detention-Held : Magistrate has the
jurisdiction under S. 167(2)-ATTest and custody-Distinction between-ATTest C
condition precedent to judicial custody-Object and applicability of S.
167(1)-AlTest need not be by Police Officer alone-'Police Officer' includes
authorised or empowered officer under special Acts like FERA/Customs Act.

Foreign Exchange Regulation Act, 1993/Customs Act, 1962-S.
35(2)1104(2)--Procedure under s. 167 Cr. P. C.-Whether attracted after a1Test D
of a person under FERA/Customs Ac~Jurisdiction of Magistrate to authorise
detention u/s. 167(2) Cr. P.C.

Interpretation of Statutes-Subsidiary Rules--l'rovisions to be con-
stmed to jUrther the ends of justice and not to fmstrate the same-Legislative E
intent-To remove the difficulties courts can mould and creatively interpret
the provisions-Can consider the object and purpose of the enactmen~an
adopt jUnctional approach and go behind the words and also consider other
factors to ascertain the legislative intent.

Words & Phrases: 'Accused'-'AlTest'-'Person arrested' 'Police F
Officer'-'Diary'-'/nvestigation'-Meaning of in the context of S. 167 Cr.
P.C./S. 35(2) of FERA/S. 104(2) of Customs Act.

Respondent No. 1 was arrested by the officers of the Enforcement
Directorate for an offence punishable under the pro\'isions of Foreign G
Exchange Regulation Act (FERA) and produced before the Magistrate. An
application under S.167(2) Cr.P.C. was moved by the Enforcement Officer
seeking the petitioner's detention under judicial custody on the ground
that it was necessary to complete the investigation. The respondent moved
the Court for bail but was not successful. He challenged the jurisdiction
of the Magistrate in authorising his detention and its extensions. His plea H
445
446 SUPREME COURT REPORTS [1994) _1 S.C.R.

A was rejected on the basis of the decision in Union of India v. O.P. Gupta
and Ors., (1990) 2 Delhi Lawyer 23(FB) by a three Judges Bench, reversing
the decision of a Division Bench in Dhalam Chand Baid v. Union of India
Ors., (1982) Crl. Law Journal 747 which held that a Magistrate had no
power to remand a person accused of an offence punishable under FERA
to judicial custody.
B
The order of the Magistrate was challenged before the High Court.
A Division Bench heard the matter and referred it to a three Judges Benr.h ·.
which in turn referred it to a five-Judges B~nch since Gupta's case was
decided by a three-Judges Bench. The five Judges Bench by majority
C O\'er-ruled the decisions in Gupta's case and held that the Magistrate had
no power to remand a person produced before him in accordance with S.
35(2) ofFERA.

The said decision has been challenged in the present appeal.

D Allowing the appeal, this Court

HELD : 1. Sub-sections (1) and (2) of Section 167 are squarely
applicable with regard to the production and detention of a person ar-
rested under the provisions of Section 35 of Foreign Exchange Regulation
Act (FERA) and S.104 of Customs Act and that the Magistrate has
E jurisdiction under Section 167(2) to authorise detention of a person ar-
rested by any authorised officer of the Enforcement under FERA and taken
to the Magistrate in compliance of Section 35(2) of FERA. [498-A-B]

Union of India v. O.P. Gupta and Others, (1990) 2 Delhi Lawyer 23
(FB), affirmed.
F
Dhalam Chand Baid v. Union of India and Ors., (1982) Crl. Law
Journal 747, overruled.

Chaganti Satyanarayana and Others v. State of Andhra Pradesh, AIR
G (1986) SC 2130 = [1986] 2 SCR 1128, referred to.

2.1. A conjoint reading of Sections 57 and 167(1) and (2) Cr.P.C.
barring the provisos to sub-section (2), manifestly shows that the legisla-
ture has contemplated that the investigation of the offence in case of a
person arrested without a warrant should be completed in the first in-
H stance within twenty four hours and if the investigation cannot be com-
DIRECTORATE OF ENFORCEMENT v. DEEPAK 447

pleted within that period, then the Magistrate can authorise the detention A
of the accused in such custody as he thinks fit for a term not exceeding 15
days. [468-G, H; 469-A]

2.2. Proviso a(i) and (ii) of Section 167(2) empowers the magistrate to
authorise the detention of the accused person otherwise than in the custody
of the police beyond the period of fifteen days, if the Magistrate is satisfied B
that adequate grounds exist for doing so, but no Magistrate can authorise
the detention of the accused person in custody for a total period exceeding
ninety days or sixty days as the case may be. If the investigation is not
completed within the prescribed period, the accused is entitled to bail as
embodied in the statute itself, provided the accused person is 'prepared to C
and does furnish bail' and the person released on bail under Section 167(2)
of the Code should be deemed to have been so released under the provisions
of Chapter XXXII for the purposes of that Chapter. [469-H; 470-A-C]

Hussainara Khatoon v. State of Bihar, [1979] 3 SCR 169 and Khatri
and Others v. State of Bihar and Others, [1981] 1 SCC 627, relied on. D

A. Lakshmanrao v. Judicial Magistrate, Parvatipuram, [1970) 3 SCC
501; Gouri Shankar Iha v. The State of Bihar, [1972) 1 SCC 564 and Natabir
Parida v. State of Orissa, [1975] 2 SCC 220, referred to.

3. Though Section 167(1) refers to the investigation by the police and E
the transmission of the case diary to the nearest Magistrate as prescribed
under the Code etc., the main. object of sub-section(l) of Section 167 is the
production of an arrestee before a Magistrate within twenty-four hours as
fixed by Section 57 when the investigation cannot be completed within that
period so that the Magistrate can take further course of action as con- F
templated under sub-section (2) of Section 167. [471-A-B]

4. Cr.P.C. gives power of arrest not only to a police officer and a
Magistrate but also under certain circumstances or given situations to
private persons. Further, when an accused person appears before a
Magistrate or surrenders voluntarily, the Magistrate is empowered to take G
that accused person into custody and deal with him according to law.
Arrest of a person is a condition precedent for taking him into judicial
custody. In every arrest, there is custody but not vice-versa and that both
the words 'custody' and 'arrest' are not synonymous terms. Though
'custody' may amount to an arrest in certain circumstances but not under H
448 SUPREME COURT REPORT~ [1994] 1 S.C.R.

A all circumstances. If these two terms are interpreted as synonymous, it is
nothing but an ultra legali!'lt interpretation which if under ~di circumstan-
ces accepted and adopted, would lead to a startling anomaly resulting in
serious consequences. [472-E-G]

Roshan Beevi v. Joint Secretary,Govemment of Tamil Nadu, (1985)
B Crl. L.J. and Niranjan Singh and Another v. Prabhakar Rajaram Kharote
and Others, [1980) 2 SCC 559, referred to.

New Encyclopedia Britanica, Halsbury's Laws of England, '.A Diction-
ary of Law' by L.B. Curzon, Black's Law Dictionary, referred to.
c 5. To invoke Section 167(1), it is not an indispensable pre-requisite
condition that in all circumstances, the arrest should have been effected
only by a police officer and none else and that there must neces~arily be ·
records of entries of a case diary. Therefore, it necessarily follows that a
mere production of an arrestee before a competent magistrate by an
D authorised officer or an officer empowered to arrest on a reasonable belief
that the arrestee " has been guilty of an offence punishable" under the
provisions of the special Act is sufficient for the Magistrate to take that
person into his custody ·on his being satisfied of the three preliminary
conditions, namely, (1) the arresting officer is legally competent to make
E the arrest; (2) that the particulars of the offence or the accusation for
which the person is arrested or other grounds for such arrest do exist and
are well-founded and (3) that the provisions of the special Act in regard
to the arrest of the person and the production of the arrestee serve the
purpose of Section 167(1) of the Code. (474-A-D]

F Gurbaksh Singh Sibbia etc. v. State of Punjab, [1980) 3 SCR 383, relied
on.

6. The word 'accused' or 'accused person' is used only in a generic
sense in Sections 167(1) and (2) denoting the "person" whose liberty is
G actually restrained on his arrest by a competent authority on well-founded
information or formal accusation or indictment. Therefore, the word
'accused' limited to the scope of Sections 167(1) and (2) ·particularly in
the light of Explanation to Section 273 of the Code includes 'any person
arrested'. The inevitable consequence that follows is that 'any person is
arrested' occurring in the first limb of Section 167(1) of the Code takes
H within its ambit 'every person arrested' under Section 35 of FERA or S.
DIRECTORATE OF ENFORCEMENT v. DEEPAK 449

104 of the Customs Act also as the case may be and the 'person arrested' A
can be detained by the Magistrate in exercise of his power under Section
167(2) of the Code. Thus, the 'person arrested' under FERA or Customs
Act is assimilated with the characteristics of an 'accused' within the range
of Section 167(2) and as such liable to be detained under Section 167(2)
by a Magistrate when produced before him. [485-G-H; 486-A-B]
B
Ramesh Chandra Mehta v. State of West Bengal, AIR (1970) SC 940
=[1969) 2 SCR 461; Illias v. Collector of Customs, Madras, AIR (1970) SC
1065; M.P. Shanna and Others v. Satish Chandra, District Magistrate, Delhi
and Others, [1954) SCR 1077; Raja Narayan/al Bansilal v. Maneck, [1961)
1 SCR 417; State of Bombay v. Kathi Kalu Oghad, [1962) 3 SCR 10; Nandini C
Satpathy v. P.L. Dani and Another, (1978) 2 424; Veera Ibrahim v. State of
Maharashtra, [1976) 2 SCC 302; Poolpandi and Others v. Superintendent,
Central Excise and Others, [1992) 3 SCC 259; Percy Rustomji Basta v. State
of Maharashtra, [1971) 1SCC847 and Raman/al Bhogilal Shah and Another
v. D.K Guha and Others, [1973] 1 SCC 696, distinguished.
D
C./. U. Cochin v. P.K Ummerkutty, (1983) Crl.L.J. 1860; N.K Ayoob
v. 17ie Superintendent, C./. W, Cochin, (1984) Crl.L.J. 949; N.H. Dave v.
Mohamed Akhtar (1984) 15 E.L.T. 353 and Senior Intelligence Officer v.
M.KS. Abu Bucker, (1989) L.W. (Crl.) 325, approved.
E
Re Kora Ayyappa and Another, Cr.L.J. 11 (1910) Page 251, referred to.

7. There is no imponderability in construing Section 35(2) of FERA
4. and Section 104(2) of Customs Act that the said provisions replace Section
167(1) and serve as a substitute thereof substantially satisfying all the F
required basic: conditions contained therein and that consequent upon such
replacement of sub-section(l) of Section 167, the arrested person under
those special Acts would be an accused person to be detained by the
Magistrate under sub-section(2) of Section 167. There is no expression
'police officer' deployed in Section 167(1) nor does it appear in any part of
Section 167 (2). The authority for detaining a person as contemplated under G
Section 167 (2) is in aid of investigation to be carried on by any prosecuting
agency who is invested with the power of investigation. [488-B-C]

Union of India v. O.P. Gupta and Others, (1990) 2 Delhi Lawyer
23(FB), affirmed. H
450 SUPREME COURT REPORTS [1994) 1 S.C.R.

A 8.1. Sub-section(l) of Section 167 speaks of the arrest by a police ·
officer and the follow up investigation by him. Section 35(1) of FERA and ~
Section 104(1) of the Customs Act empower the authorised officer under
the relevant provisions to effect arrest of a person against whom there is
reason to believe that he has been guilty of an offence under the respective
concerned Acts. [489-F] ;
B :·.

8.2. Neither the Police Act, 1861 nor any other statute defines the
expression 'Police Ofticer'. Shortly stated, the main duties of the police are
the prevention, detention and investigation of crimes. As the powers and ~
duties of the State have increased and are increasing manifold, various
C ,Acts dealing with Customs, Excise, Forest, Taxes etc. have come to be
passed and consequently the prevention, detention and investigation of
offences as prescribed under those Acts have come to be entrusted to
officers with different nomenclatures appropriate to the subject with ref·
erence to which they function. Though the powers of customs officers and
D enforcement officers are not identical to those of police officers quo the
investigation under Chapter XII of the Code yet the officers under the
FERA and Customs Act are vested with certain powers similar to the
powers of police officers. [489-G-H; 490-A-B]

8.3. Though an authorised officer of Enforcement or Customs is not
E undertaking an investigation as contemplated under Chapter XII of the
Code, yet those officers are enjoying some analogous powers such as
arrest, seizure interrogation etc. Besides, a statutory duty is enjoined on
them to inform the arrestee of the grounds for such arrest as contemplated
under Article 22(1) of the Constitution and Section 50 of the Code.
Therefore, they have necessarily to make records of their statutory func-
F tions show-ing the name of the informant, as well as the name of the person
who violated any other provision of the Code and who has been guilty of
an offence punishable under the Code, nature of information received by
them, time of the arrest, seizure of the contraband if any, and the state·
ments recorded during the course of the detection of the offence/offences.
G [490-D-E]
9. The expression 'Diary' referred to in Section 167(1) of the Code is
the special diary mentioned in Section 167 (2) which should contain full
and unbridged statements of persons examined by the police so as to give
the Magistrate on a perusal of the said diary, a satisfactory and complete
H source of information which would enable him to decide whether or not
DIRECTORATE OF ENFORCEMENT v. DEEPAK 451

the accused person should-be detained in custody but it is different from A
the general dtary maintained under Section 44 of the Police Act. [490-C]

10. The police officer after consummation of the investigation files a
report under Section 173 of the Code upon which the Magistrate may take
cognizance of any offence disclosed in the report under Section 190(l)(b)
of the Code whereas the empowered or authorised officer of the special B
Acts has to file only a complaint of facts constituting any offence under
the provisions of the Act on the receipt of which the Magistrate may take
cognizance of the said offence under Section 190(1) (a) of the Code. After
taking cognizance of the offence either upon a police report or upon
receiving a complaint of facts, the Magistrate has to proceed with the case c
as per the procedure prescribed under the Code or under the S!Jecial
procedure, if any, prescribed under the special Acts. Therefore, the word
'investigation' cannot be limited only to police investigation but on the
other hand, the said word is of wider connotation and flexible so as to
include the investigation carried on by any agency whether be be a police
officer or empowered or authorised officer or a person not being a police D
officer or empowered or authorised officer or a person not being a police
officer under the direction of a Magistrate to make an investigation vested
with the power of investigation. [492-C-F]

N.H. Dave, Inspector of Customs v. Mohmed Akhtar, (1984) 15 E.L.T. E
353(Guj.); H.N. Rishbud v. State of Delhi, [1955] 1SCR1150 and State of
M.P. v. Mubarak Ali, [1959] Supp. 2 SCR 201, relied on.

Ramesh Chandra v. The State of West Bengal, [1969] 2 SCR 461; lllias
v. Collector of Customs, Madras, [1969] 2 SCR 613; State of Punjab v. Barkat
Ram, [1962] 3 SCR 338 and Badaku Jyoti Savant v. State of Mysore, [1966] F
3 SCR 698, distinguished.

11. The word 'investigation' though is not shown in any one of the
sections of the Customs Act, certain powers· enjoyed by the police officer
during the investigation are vested on the specified officer of customs. It G
cannot, therefore, be said that either the Officer of Enforcement or the
Customs Officer is not empowered with the power of investigation though
not with the power of filing a final report as in the c&se of a police officer.
[493-F-G]
12. The combined operation of Sections 4(2) and 26(b) of the Code H
452 SUPREME COURT REPORTS [1994] 1 S.C.R.

A is that the offence complained of should be investigated or inquired into
or tried according to the provisions of the Code where the enactment which
creates the offence, indicates no special procedure. [494-C]

13. Section 4 is comprehensive and Section 5 is not in derogation of
Section 4(2) and it only relates to the ext«;l!t of application of the Code in
B the matter of territorial and other jurisdiction but does not nullify the
effect of Section 4(2). In short, the provisions of this Code would be
applicable to the extent in the absence of any contrary provision in the
Special Act or any special provision excluding the jurisdiction or ap·
plicability of the Code. In fact, the second limb of Section 4(2) itself limits
C the application of the provisions of the Code. [496-B-C]

Viswa Mitter of Vijay Bharat Cigarette Stores v. O.P. Poddar, [1983) 4
SCC 701 and A.R. Antulay v. Ramdas Sriniwas Nayak, [1984) 2 SCR 914,
relied on.

D 14. The operation of Section 4(2) of the Code is straightway attracted
to the area of investigation, inquiry and trial of the offences under the
special laws including the FERA and Customs Act and consequently
Section 167 of the Code can be made applicable during the investigation
or inquiry of an offence under the special Acts also inasmuch as there is
no specific provision contrary to that excluding the operation of Section
E
167. [497-C]

Bhim Singh v. State of U.P., AIR (1955) SC 435 and Delhi Administra-
tion v. Ram Singh, (1962) 2 SCR 694, relied on.

F 15. A Magistrate before whom a person arrested by the competent
authority under the FERA or Customs Act is produced, can authorise
detention in exercise of his powers under Section 167 Cr.P.C. Otherwise
the mandatory direction under the provisions of Section 35(2) of FERA or
104(2) of the Customs Act, to take every person arrested before the
Magistrate without unnecessary delay when the arrestee was not released
G on bail under sub-section(3) of those special Acts, will become purposeless
and meaningless and to say that the Courts even in the event of refusal of
bail have no choice but to set the person arrested at liberty by folding their
hands as a helpless spectator in the face of what is termed as 'legislative
causes omissus' or legal flaw or lacuna, it will become utterly illogical and
H absurd. (497-F-Gl
DIRECTORATEOFENFORCEMENT v. DEEPAK 453

16. Though the function of the Courts is only to expound the law and A
not to legislate, nonetheless the legislature cannot be asked to sit to resolve
the difficulties in the implementation of its intention and the spirit of the
law. In such circumstances, it is the duty of the .court to mould or
creatively interpret the legislation by liberally interpreting the statute.
[464-CJ B
17. Normally Courts should be slow to pronounce the legislature to
have been mistaken in its constantly manifested opinion upon a matter
resting wholly within its will and take its plain ordinary grammatical
meaning of the words of the enactment as affording the best guide, but to
winch up the legislative intent, it is permissible for Courts to take into C
account the ostensible purpose and object and the real legislative intent.
Otherwise, -a bare mechanical interpretation of the words and application
of the legislative intent devoid of concept of purpose and object will render
the legislature inane. In cases of this kind, the question is not what the
words in the relevant provision mean but whether there are certain
grounds for inferring that the legislature intended to exclude jurisdiction D
of the Courts from authorising the detention of an arrestee whose arrest
was effected on the ground that there is reason to believe the said person
has been guilty of an offence punishable under the provisions of FERA or
the Customs Act which kind of offences seriously create a dent on the
economy of the nation and lead to hazardous consequences. It is permis- E
sible for Courts to have functional approaches and look into the legislative
intention and sometimes may be even necessary to go behind the words
and enactment and take other factors into consideration to give effect to
the legislative intention and to the purpose and spirit of the enactment so
that no absurdity or practical inconvenience may result and the legislative
exercise and its scope and object may not become futile. [466-E-H; 467-A]
F

M.Pentiah v. Muddala Veeramallapa, [1961) 2 SCR 395; Bangalore
Water Supply v.A. Rajappa, AIR (1978) SC 548; Chandra Mohan v. State of
Uttar Pradesh and Ors., [1967) 1 SCR 77; Organo Chemical lndustries v.
Union of India, [1980) 1 SCR 69 and Chainnan, Board of Mining Examina- G
tion and Chief Inspector of Mines and Another v. Ramjee, AIR (1977) SC
965, referred to.

Seaford Courl Estates Ltd. v.Asher, [1949) 2 All ER 155 and Guiseppi
v. Walling, 144F (2d) 608 (CCA 2d, 1944), referred to. H
454 SUPREME COURT REPORTS [1994) 1 S.C.R.

A Maxwell on Statutes (10th Edn.) page 229, relied on.
·')--
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
537of1990.

From the Judgment and order dated 6-4-1990 of the High Court of
B Delhi in Criminal Writ No. 316/89.

AD. Giri, Solicitor General, K.T.S. Tutsi, Addi. Solicitor General,
A. Subba Rao and C.V.S. Rao for the appellant.

C K.G. Bhagat, Rajeev Sharma and P.N. Bhan for the respondents.

The Judgment of the Court was delivered by

S. RATNAVEL PANDIAN, J. 1. The salient and indeed substantial
legal question which looms for determination in this appeal may be formu-
D lated as follows :

Whether a Magistrate before whom a person arrested under sub-
section (1) of Section 35 of the Foreign Exchange Regulation Act
of 1973 which is in pari materia with sub-section (1) of Section 104
E of the Customs Act of 1962, is produced under sub-section (2) of
Section 35 of the Foreign Exchange Regulation Act, has jurisdic-
tion to authorise detention of that person under Section 167 (2)
of the Code of Criminal Procedure ?

2. As a preclude to the judgment, we would like to state that though
F the appellant in the present case has been arrested under sub-section (1)
of Section 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
G 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
H to the provisions of both the Acts.
DIRECTORATEOFENFORCEMENT v. DEEPAK [PANDIAN,J.] 455

3. There is a vertical cleavage of opinion amongst the various High A
Courts on the above legal question which has come up for adjudication in
the present appeal.
'
4. This appeal, by special leave is directed against the judgment of
the High Court of Delhi dated 6th April 1990 rendered by a five-Judges
Bench in Criminal Writ No. 316 of 1989 over-ruling the decision of the
B
same High Court in Union of India v. O.P. Gupta and Others, (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 and Ors., 1982 Crl. Law Journal 747 which was
decided by a Division Bench of the same High Court holding that a C
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.

5. Though normally, it may not be necessary to make any reference D
about the constitution of a particular Bench which is the prerogative 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 pf the Bench, presided over by E
Charanjit Talwar, J who gave a dissenting judgment in the case of O.P.
Gupta.

6. In Gupta's case, 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 dissent- F
ing judgment.

7. When the decision of Gupta's case was holding the field, the
respondent No.l, namely, Deepak Mahajan was arrested on 13th March
1989 by the officers of the Enforcement Directorate for an offence punish- G
able under the provisions of FERA and taken before the Additional Chief
Metropolitan Magistrate, New Delhi on the next date as per the mandate
of sub-section (2) of Section 35 of the said Act. An application under
Section 167 (2) of the Code of Criminal Procedure (hereinafter referred
to as 'the Code') was moved by the Enforcement Officer seeking
petitioner's detention under judicial custody commonly known in the legal H
456 SUPREME COURT REPORTS (1994) 1 S.C.R.

A parlance as 'judicial remand' on the ground that it was necessary to
complete the investigation. On the very same day, the respondent unsuc-
cessfully moved the Court for bail. The Magistrate remanc1ed the first
respondent to judicial custody for fourteen days and subsequently extended
the detention period. The first respondent challenged the jurisdiction of
the Magistrate in authorising the detention (remand) and the subsequent
B consecutive extensions. But his plea was rejected on the basis of the
decision in Gupta's case. This order of the Magistrate was impugned before
the High Court. The Division Bench of the High Court comprising of
Charanjit Talwar, V.B. Bansal, JJ in the light of the decision of this Court
in Chaganti Satyanarayana and Others v. State of Andhra Pradesh, AIR
c (1986) SC 2130 = (1986) 2 SCR 1128 holding that the powers of remand
vested in a Magistrate become exercisable only after an accused is
produced before him in terms of sub-section (1) of Section 167 of the Code,
referred the matter by its order dated 12th March 1980 to a larger bench
opining that the law laid down in Gupta's case was no longer a good law
D and it required re-consideration. The learned Chief Justice of the High
Court on such reference constituted a full Bench comprising of Charanjit
Talwar, J.C. Jain and V.B. Bansal, JJ. This three-Judges Bench after
hearing the matter for sometime expressed their view that the case should
be heard and decided by a five-Judges Bench since the judgment in Gupta's
case was already decided by a three-Judges Bench. It was under those
E circumstances, the Bench was constituted comprising of Charanjit Talwar,
Malik Sharief-Ud-Din, Sunanda Bhandare, P.K. Bahri and R.L. Gupta, JJ.
Thus the said case was heard by a five-Judges Bench.

8. By majority (per Charanjit Talwar, Sunanda Bhandare and P.K.
Bahri, JJ) the decision in Gupta's case has been over-ruled though Malik
F
Sh~ief-Ud-Din and R.L. Gupta, JJ gave their separate dissenting judg-
ment. The result was that the dictum laid down in Gupta's case to the effect
that there is " power available to a Magistratr- under Section 167 (2) of the
Code to commit to custody a person proquced before him by a Customs
Officer under Section 104 of the Customs Act", has been over-ruled.
G However, the conclusion of Gupta's case that "Section 437 of the Code of
Criminal Procedure does not confer implied power of remand on a
Magistrate" has been upheld.

9. Consequent upon the above dictum by majority, it has been held
H in the present case that the Magistrate has no power to remand a person
DIRECTORATE OF ENFORCEMENT v. DEEPAK [PANDIAN,J.] 457

produced before him in accordance with Section 35 (2) of FERA. A
10. In this connection, be it noted that the provisions of Section 35
of FERA (which corresponds to Section 19-B of the old FERA (Act VII
of 1947) and sub-section 1 to 3 of Section 104 of the Customs Act are
identical and they do not explicitly lay down the procedure as to haw the ·
Magistrate should deal with an arrestee, when brought before him either B
by the Officer of the Enforcement Directorate or the Customs Officer, as
the case may be.

11. For proper understanding and scrutiny of this rule, let us
reproduce the relevant provisions of Section 35 of FERA and Section 104 C
of the Customs Act.

"Section 35 of FERA

(1) If any officer of Enforcement authorised in this behalf by the
Central Government, by general or special order, has reason to D
believe that any person in India or within the Indian customs waters
has been guilty of an offence punishable under this Act, he may
arrest such person and shall, as soon as may be, inform him of the
grounds for such arrest.

(2) Every person arrested under sub-section (1) shall, without. E
unnecessary ctelay, be taken to a Magistrate.

(3) Where any officer of Enforcement has arrested any person
under sub-section (1), he shall, for the purpose of releasing such
person on bail or otherwise, have the same powers and be subject F
to the same provisions as the officer-in-charge of a police station
has, and is subject to, under the Code of Criminal Procedure, 1898
(5 of 1898).

Section 104 of the Customs Act
G
(1) If any officer of customs empowered in this behalf by general
or special order of the Collector of Customs has reason to believe
th11.t any person in India or within the Indian Customs waters has
been guilty of an offence punishable under Section 135, he may
arrest such person and shall, as soon as may be, informed him of H
SUPREME COURT REPORTS [1994) 1 S.C.R.

A the grounds for such arrest.

(2) Every person arrested under sub-section (1) shall, without
unnecessary delay, be taken to a Magistrate.

(3) Where an officer of customs has arrested any person under
B sub-section (1), he shall, for the purpose of releasing such person
on bail or otherwise, have the same powers and be subject to the
same provisions as the officer-in-charge of a police station has and
is subject to, under the Code of Criminal Procedure, 1898 (5 of
1898).
c (4) Notwithstanding anything contained in the Code of Criminal
Procedure 1898 (5of1898), an offence under this Act shall not be
cognizable.

12. Though there is no specific provision in FERA as sub-section (4)
D of Section 104 of tJie Customs Act, Section 62 speaks of non-cognizable
offences and that Section reads as follows :

"62. Certain officences to be non· congnizable - Subject to the
provisions of Section 45 and nohvithstanding anything contained
in the Code of Criminal Procedure, 1898 (5 of 1898), an offence
E punishable under section 56 shall be deemed to be non-cognizable
within the meaning of that Code."

13. Sub-section (2) of Section 61 restricts a Court in taking cog-
nizance of certain offences and also in cases of certain offences except
under certain conditions. That provision reads thus :
F
"61. Cognizance of offences .............................................. ..

(2) No Court shall take cognizance -
G
(i) · of any offence punishable under sub-section (2) of Section 44
or sub-section (1) of Section 58, -

(a) Where the offence is alleged to have been committed by an
officer of Enforcement .not lower in rank than an Assistant
H Director of Enforcement, except with the previous sanction
DIRECTORATEOFENFORCEMENT v. DEEPAK [PANDIAN,J.J 459

of tb,e Central Government; A·
(b) Where the offence is alleged to have been committed by an
officer of Enforcement lower in rank than an Assistant Direc-
tor of Enforcement, except with the previous sanction of the
Director of Enforcement; or
B
(ii) of any offence punishable under Section 56 or Section 57,
except upon complaint in writing made by -

(a) the Director of Enforcement; or

(b) any officer authorised in writing in this behalf by the Director C
of Enforcement or the Central Government; or

(c) any officer of the Reserve Bank authorised by the Reserve
Bank by a general or special order :

Provided that where any such offence is the contravention of any D
of the provisions of this Act or any rule, direction or order made
thereunder which prohibits the doing of an act without permission,
no such complaint shall be made uitless the person accused of the
offence has been given an opportunity of showing that he had such
permission." E
14. The key questions that come up for consideration are whether a
Magistrate before whom a person arrested under Section 35 is taken can
detain that arrestee in judicial custody and if not, what the Magistrate is
expected to do? To answer those questions, we have to examine sub-section
(2) of Section 35 of FERA and sub-section (2) of Section 104 of the F
Customs Act which are in pan materia reading :

"Every person arrested under sub-section (1) shall, without un-
necessary delay be taken to a Magistrate."

15. Apart from the power of arrest provided under Section 35 of the G
FERA, Section 45 of that Act empowers any police officer not below the
rank of a sub-Inspector of Police, or any other officer of the Central
Government or State Government authorised by the Central Government
in this behalf to enter into any public place and search and also arrest
without warrant any person found therein who is reasonably suspected of H
460 SUPREME COURT REPORTS [1994] 1 S.C.R.

A having committed or of committing or of being about to commit any
contravention of the provisions of sub-section (1) of Section 8. The proce-
dure to be followed, after effecting such arrest is contemplated under sub-
section (2) of Section 45 which states that 'where any person is ar;ested
under sub~section (1) by an officer other than-a police officer, such officer
shall, without unnecessary delay, take or -send the person arrested before
B a Magistrate having jurisdiction or before the officer-in-chaige of a police
station. In this context, a perplexed question arises as to what the
Magistrate or the police officer has to do in case the arrestee under Section
45 (1) of FERA is taken or sent before him? Section 46 lays down the
procedure in respect of foreign exchange or any other goods seized by
C police officers. Though we are not very much concerned, in this case, with
the procedure laid down in Section 46, the fact remains that in the FERA,
the police officers are given some independent authority to act in exercise
of certain provisions of this Act. There is no provision in the Customs Act
similar to Sections 45 and 46 of the of the FERA. However, Section 151
D of Customs Act empowers and requires certain specified officers
enumerated under clauses (a) to (e) to assist officers of Customs in the
execution of the Act. One of the officers enumerated under clause (c) is
'officers of police'. But this section does not empower police officers to
exercise the powers conferred upon customs officers by and under the Act
but only authorises and requires the police officers to assist the customs
E officer in the exercise of their powers.

16. The 'proper officer' referred to in various provisions of the
Customs Act, who is to perform any function under the said Act, means
the officer of Customs who is assigned those functiOns by the Board or
Collector of Customs as defined under clause (34) of Section 2 of Customs
F
Act, but it does not include the Officers of Police or any other Officers
enumerated under Section 151. Therefore, the police officers have no
independent role to play in exercise of the powers under the Customs Act
as in Sections 45 and 46 of the FERA.

G 17. For the disposal of this appeal, we have to deal with the intend-
ment .and application of various provisions of the FERA particularly Sec-
tions 35, 45, 46, Section 104 of Customs Act, Section 68 of the Gold Control
Act and various provisions of the Code of Criminal Procedure in particular
Sections 4 (2), 41, 56, 57, 157 (2), 167 (1)(2), 436, 437 and the allied
H provisions, in the light of the principles of law enunciated by the judicial
DIRECTORATEOFENFORCEMENT v. DEEPAK [PANDIAN,J.] 461

pronouncements of this Court as well as of some High Courts. In fact, in A
the impugned judgment, the High Court also has examined all those
provisions from various angles, but the question would be whether the
interpretation given and the conclusion arrived at by the majority of the
Court below can be sustained?

18. Reverting to the judgment under challenge, Charanjit Talwar, J B
in his separate judgment with which Sunanda Bhandare and P.K. Bahri, JJ
have agreed, has given the following reasons for his conclusions. Those
being:

(1) Neither an officer of Enforcement nor the Customs Officer C
within the meaning of the provisions of FERA or Customs Act
respectively is a police officer, incharge of a police station or a
police officer making an investigation as contemplated under Sec-
tion 167(1) of the Code and, therefore, a Magistrate before whom
an arrestee is taken or sent by an Enforcement Officer or Customs
Officer, as the case may be, cannot authorise the detention of the D
persons, so produced or presented, either to judicial custody or to
the custody of the arrestor or make subsequent periodical exten-
sion of detention or remand in exercise of the powers under
Section 167(2) of the Code. In other words, the power to arrest a
person coupled with the duty to produce or present him before a E
Magistrate under Section 35 of FERA or Section 104 of Customs
Act ipso facto does not attract the operation of clauses (1) and (2)
of Section 167 of the Code.

(2) Neither the Officer of Enforcement authorised under Section
35 of Fera nor the Officer of Customs empowered under Section F
104 is a police officer nor is the person arrested by any of them is
yet an accused triable by a Magistrate having jurisdiction or an
accused to be committed for trial at that stage.

(3) Neither the Officer of Enforcement nor the Customs Officer G
is empowered with the power of investigation as contemplated
under Chapter XII of the Code or under any specific provisions
of the special laws.

(4) Neither the Officer holding inquiry under the provisions of
FERA or the Customs Act can exercise the power of investigation. H
462 SUPREME COURT REPORTS [1994) 1 S.C.R.

A as contemplated under Chapter XII of the Cede by virtue of
Section 4(2) of the Code.

(5) The power conferred on such authorised or empowered Officer
to make arrest of any person on reasonable belief that such person
has been guilty of an offence punishable under the provisions of
B FERA or Section 135 of the Customs Act, as the case may be, and
to produce the arrestee before a Magistrate is though similar with
a duty cast on a police officer as under Sections 56 and 57 of the
Code, those officers are not equivalent to police officers with the
power of investigation into the commission of an offence as em-
c powered under Chapter XII of the Code though they are enjoying
the limited power, as given to the officer incharge of a police
station under the Code for the purpose of releasing an arrestee on
bail or otherwise.

19. Ere, we turn to the legal issues raised by the respective parties,
D it has become inevitably necessary to first examine the issues on the legal
principle and then to interpret the construction of the language of the
statute, deployed both implicitly and explicitly with reference to the
provisions of the Code and of the other allied special laws.

E 20. Manifestly, the significant and axial issue that arises in this appeal
for decision is pristinely a legal question which we have indicated in the
proem:ial part of this judgment and which we have to examine in the
backdrop of the various provisions of the general procedural laws, keeping
in mind of the dividing
..... arguendo and the shades of divergent judicial
opinions of various High Courts though the controversy centers around a
F short point.

21. In order to resolve that COfi:troversy, it has become essential to
focus our attention on the task of proper application of the concerned law
by ascertaining the purposeful meaning of the language deployed, the sp~t
G and sense which the legislature has aimed and intended to convey and the
conclusions to be drawn which are in the tenor of the law though not within
the letter of the law.

22. In the background of the above principle of statutory interpreta-
tion, now coming to and dealing with the legal challenges, several vital ·
H queries have to be considered and answered. Those are :
DIRECTORATE OF ENFORCEMENT v. DEEPAK [PANDIAN,J.] 463

~1) Whether the jurisdiction of the Magistrate to authorise deten- A
'ion of an arrestee produced before him either in judicial custody
or otherwise under Section 167(2) of the Code is completely
. excluded or ousted by the absence of any specific provision in the
FERA ·or the Cu~toms Act empowering the Magistrate to
'authorise the detention' of the arrestee under the Code? B

(2) When the jurisdiction of the Magistrate to authorise detention
is not expressly forbidden by any specific exclusionary provision
and when such exclusion of jurisdiction cannot be clearly implied
or readily inferred, does the detention authorised by the Magistrate C
either to Judicial custody or otherwise become ab initio void and
illegal and can the Magistrate be said to have exceeded or abused
his authority?

(3) What is the procedure to be followed and the order required
to be passed by the Magistrate when a person arrested under the D
FERA or Customs Act is presented before him?

(4) When the Officer of Enforcement or Customs Officer is not
inclined-to release the arrestee on bail or otherwise by exercising
the power under sub-section (3) of Section 35 of FERA or Section E
104 of the Customs Act, as the case may be, but produces the
arrestee before a Magistrate as mandated by sub-section (2) of the
above said provisions, will it not be a legal absurdity to say that
the Magistrate should forthwith let go the arrestee without order-
ing detention and also extension of further detention or remand?;
F
and

(5) Whether the Magistrate has no other alternative except to
release that.arrested person, produced before him on bail or direct
him to be freed unconditionally and whether the Magistrate is
completely stripped off his authority to refuse bail and take him G
to judicial custody?

23. The above questions are some of the legal challenges canvassed
before the full Bench of the High Court which by a majority opinion has
negatively answered. H
464 SUPREME COURT REPORTS [1994] 1 S.C.R.

A 24. Keeping in view the cardinal principal of law that every law is
designed to further the ends of justice but not to frustrate on the mere
technicalities, we shall deal with all those challenges in the background of
the principles of statutory interpretations and of the purpose and the spirit
of the concerned Acts as gathered from their intendment.
B
25. The concerned relevant provisions of the Acts with which we are
concerned, no doubt, pose some difficulty in resolving the question with
regard to the jurisdiction of the Magistrate authorising detention. and
subsequent extension of the same when the provisions of those Acts are
C narrowly and literally interpreted. Though the function of the Courts is only
to expound thr! law and not to legislate, nonetheless the legislature cannot
be asked to sit to resolve the difficulties in the implementation of its
intention and the spirit of the law. In such circumstances, it is the duty of
the Court to mould or creatively interpret the legislation by liberally
interpreting the statute.
D
26. In Maxwell on Statutes (10th Edn.) at page 229, the following
passage is found:

"Where the :iaD.guage of a statute, in its ordinary meaning and
E grammatical construction, leads to a manifest contradiction of the
apparent purpose of the enactment, or to some inconvenience or
absurdity, hardship or injustice, presumably not intended, a con-
struction may be put upon it which modifies the meaning of the
words, and even the structure of the sentence ........... Where the
main object and intention of a statute are clear, it must not be
F
reduced to a nullity by the draftsman's unskilfulness or ignorance
of the law, except in a case of necessity, or the absolute intrac-
tability of the language used."

It Seaford Court Estates Ltd. v. Asher [1949] 2 All ER 155 at p.164,
G Dinning, L.J. said:

"When a defect appears a Judge cannot simply fold his hands and
blame the draftsman. He must set to work on the constructive task >
of finding the intention of Parliament............ and then he must
H supplement the written word so as to give "force and life" to the
DIRECTORATEOFENFORCEMENT v. DEEPAK (PANDIAN,J.] 465

intention of the legislature ......... A Judge should ask himself the. A
question how if the makers of the Act had themselves ccme across
this ruck in the texture of it, they would have strengthened it out?
He must then do as they would have done. A Judge must not alter
the material of which the Act i" woven, but he can and should iron
out the creases." B
27. Though the above observations of Lord Denning were disap-
proved in appeal by the House of Lords in 1951 (1) All England Law
Reports 839 (HL), Sarkar, J speaking for the Constitution Bench in M.
Pentiah v. Muddala Veeramallapa, [1961) 2 SCR 295 adopted that reasoning
of Lord Dening. Subsequently also, Beg, CJ in Bangalore Water Supply v. C
A. Rajappa, AlR (1978) SC 548 approved the observations of Lord stating
thus:

"Perhaps with the passage of time, what may be described as the
extension of a method resembling the "armchair rule" in the con- D
struction of wills, Judges can more frankly step into me shoes of the
legislature where an enactment leaves its own intentions in much too
nebulous or uncertain a State."

(emphasis supplied)
E
28. It will be befitting, in this context, to recall the view expressed by
Judge Frank in Guiseppi v. Walling, 144F (2d) 608 pp. 620, 622(CCA 2d,
1944) which is quoted in 60 Harvard Law Review 370, p.372 reading thus :

"The necessary generality in the wordings of many statutes, and
ineptness of drafting in others frequently compels the court, as
F
best as they can, to fill in the gaps, an activity which no matter how
one may label it, is in part legislative. Thus the courts in their way,
as administrators in th~ir way perform the task of supplementing
statutes. In the case of courts, we call it 'interpretation' or 'filling
in the gaps'; in the case of administrators we call it 'delegation' or G
authority to supply the detaifa."

29. Subba Rao, C.J. speaking for the Bench in Chandra Mohan v.
State of Uttar Pradesh & Ors., [1967) 1 SCR 77 has pointed out that the
fundamental rule of interpretation is that in construing the provisions of H
466 SUPREME COURT REPORTS (1994] 1 S.C.R.

A the Constitution or the Act of the Parliament, the Court "will have to find
out the exvress intention from the words of the Constitution or the Act, as
the case may be ........... " and eschew the construction which will lead to
absurdity and give rise to practical inconvenience or make the provisions
of the existing law nugatory.
B A.P. Sen, Jin Organo Chemical Industries v. Union of India, (1980] 1
SCR 69 has stated thus:

"A bare mechanical interpretation of the words 'devoid of concept
or purpose' will reduce most of legislation to futility. It is a salutary
c rule, will established, that the intention of the legislature must be
· found by reading the statute as a whole."

30. Krishana Iyer, J has pointed out in his inimitable style in Chair-
man, Board of Mining Examination and Chief Inspector of Mines and
D Another v. Ramjee AIR (1977) SC 965 'To be literal in meaning is to see
the skin and miss the soul of the Regulation."

31. True, normally Courts should be slow to pronounce the legisla-
ture to have been mistaken in its constantly manifested opinion upon a
E matter resting wholly within its will and take its plain ordinary grammatical
meaning of the words of the enactment as affording the best guide, but to
winch up the legislative intent, it is permissible for Courts to take into
account of the ostensible purpose and object and the real legislative intent.
Otherwise, a bare mechanical interpretation of the words and application
of the legislative intent devoid of concept of purpose and object will render
F the legislature inane. In cases of this kind, the question is not what the
words in the relevant provision mean but whether there are certain grounds
for inferring that the legislature intended to exclude jurisdiction of the
Courts from authorising the detention of an arrestee whose arrest was
effected on the ground that there is reason. to believe that the said person
G has been guilty of an offence punishable under the provisions of FERA or
the Customs Act which kind of offences seriously create a dent on the
economy of the nation and lead to hazardous consequences. Authorities, a
few of which we have referred to above, show that in given circumstances,
it is permissible for Courts to have functional approaches and look into the
H legislative intention and sometimes may be even necessary to go behind the
DIRECTORATEOFENFORCEMENT v. DEEPAK [PANDIAN,J.] 467

words and enactment and take other factors into consideration to give
effect to the legislative intention and to the purpose and spirit of the
enactment so that no absurdity or practical inconvenience may result and
the legislative exercise and its scope and object may not become futile. •

32. In the light of the above exposition of !he principle of law we have
no reason to believe and in fact do not believe that the provisions of the
FERA and Customs Act were passed for any other purpose rather than
their ostensible purposes, vital among which being the economic develop-
ment of the country and augmentation of revenue.

33. Bearing in mind the above principles of interpretation and the
legal proposition, we shall now approach all the challenges canvassed and
examine the legal issue on the principle of interpretation of law, ~ore so
with the aid of some other provisions of the procedural law so that no
obscurity or absurdity may result in resolving the legal intricacy posed for
consideration in this case.

34. To begin with, we shall examine the primary question whether
Section 35 (2) of FERA or 104 (2) of the Customs Act serves as a substitute
to Section 167(1) of the Code. To say in other words, whether SectiQD 167
(1) is replaced or substituted by the abovesaid provisions of two special
Acts. The majority of the Judges in O.P. Gupta in paragraph 37 has posed
a similar question for their consideration and answered that question in
the following words:

"Section 167(1) of the Code is already replaced by Section 104(2)
of the Customs Act and Section 35(2) of the Foreign Exchange
Regulation Act. What is to be done to a person who is so produced
before the Magistrate is dealt with only under Section 167(2) of
the Code and not under Section 167(1) of the Code."

35. But Talwar, J dissented from that view observing, "the power to
arrest a person coupled with the duty to produce him or present him before
the Magistrate ipso facto does not attract the provisions of Section 167 of
the Code."

36. The same learned Judge (Talwar, J) in his judgment in Deepak
Mahajan which is impugned herein again considered that question and
reaffirmed his earlier stand rejecting altogether the contention that Section
468 SUPREME COURT REPORTS [1994] 1 S.C.R.

A 35(2) of FERA and Section 104(2) of the Customs Act are substitutes to
Section 167(1) of the Code and that it is nothing but only a mismatch of
the provisions of the Code and the provisions of the Customs Act and
FERA, mainly on the ground that the pre-requisite conditions required for
invocation of Section 167(1) are conspicuou~ly absent in the provisions of
B the other two special Acts, those being; (1) Section 167 of the Code
specifically refers only to a person arrested and detained in custody by a
police officer on well founded accusation or information; (2) there must
be an investigation by a police officer as explained in Section 167(1) of the
Code; (3) the words 'officer in charge of a police station or a police officer
C making the investigation, if he is not below the rank of Sub-Inspector'
cannot be substituted by the words 'customs officer or officer of.
enforcement'; (4) there is no question of transmission of a copy of the
entries in the diary as prescribed relating to the case in respect of the
accused arrested and (5) the person arrested by the officer of enforcement
or customs officer is not an accused within the purview of the Code and
D that the officer concerned is not investigating the commission of an offence
triable by a Magistrate though they havt! been given a limited power of the
officer in charge of a police station "to grant or not to grant bail" and
nothing more.

E 37. The majority of the Judges in Deepak Mahajan have gone to the
extent of holding that Section 4(2) of the Code cannot come in aid to
invoke Section 167(2) even on interpretation of the provisions of those two
special Acts read with Section 4(2) of the Code.

38. We shall now examine the provisions of Section 167 (1) and (2)
F of the Code vis-a-vis Section 35 (2) of FERA and Section 104(2) of the
Customs Act having regard to the purpose for which these provisions are
enacted.

39. The caption of Section 167 reads "Procedure when investigation
G cannot be completed in twenty-four hours". A conjoint reading of Section
57 (corresponding to Section 61 of the old Code) and Secti_on 167(1) and
(2) barring the provisos to sub-section (2) of the Code together, manifestly
shows that the legislature has contemplated that the investigation of the
offence in case of a person arrested without a warrant should be completed
H in the first instance within twenty-four hours and if the investigation cannot
~-

DIRECTORATE OF ENFORCEMENT v. DEEPAK [PAND IAN, J.) 469

A be completed within that period, then the Magistrate can authorise the A
"""""' detention· of the accused in such custody as he thinks fit for a term not
exceeding 15 days.

40. The original proviso added to Section (2) of Section 167 of the
Code empowered the Magistrate to authorise detention of the accused
B B
persons otherwise than in custody of the police, beyond the period of
fifteen days for a total period not exceeding sixty days and on the expiry
of the said period of sixty days, the accused person shall be released on
-t bail. But s~bsequently, in place of the original proviso, the present proviso
was substituted by Section 13-A of Cr.P.C. (Amendment) Act, 1978 w.e.f.
c 18.12.1978 whereby the period of sixty days prescribed in general for all c
kinds of cases under the original proviso has been modified as ninety days,
where the investigation relates to an offence punishable with death, im-
prisonment for life or imprisonment for a term of not less than ten years,
and sixty days, where the investigation relates to any other offence. By
D Section 13-B of the said Amendment Act, original Explanation I was D
~ renumbered as Explanation II and Explanation I was added.

41. Sub-section (2A) to Section 167 of the Code has been inserted
by Section 13(c) of the above said Amendment Aci: w.e.f. 18.12.1978.
E Before the introduction of the proviso to Section 167(2), further remand E
on the expiry of fifteen days was made on the strength of the Explanation
to Section 344 of the old Code under the heading "Reasonable cause for
remand" which corresponded to the present Explanation I of Section 309
~
of the new Code. The reasonable cause for such extension of remand was
the collection 6f sufficient evidence within the first period of fifteen days
F to raise a suspicion that the accused might have committed an offence and F
that it appeared likely that further evidence might be obtained by such a
remand. This extension of remand was for enabling the investigating agency
to collect further material pertaining to the offence under investigation. See
(1) A. Lakshmanrao v. Judicial Magistrate, Parvatipuram, [1970] 3 SCC 501;
G (2) Gouri Shankar !ha v. The State of Bihar, [1972] 1 SCC 564 and (3) G
Natabir Parida v. State of Orissa, [1975) 2 SCC 220.
-"'--.
42. The present proviso a(i) a~d (ii) of Section 167(2) empowers the
Magistrate to authorise the detention of the accused person otherwise than
H in the custody of the police beyond the period of fifteen days, if the H
470 SUPREME COURT REPORTS [1994) 1 S.C.R.

A Magistrate is satisfied that adequate grounds exist for doing so, but no
Magistrate can authorise the detention of the accused person in custody
for a total period exceeding ninety days or sixty days as the case may be.
If the investigation is not completed within the prescribed period, the
accused is entitled to bail as embodied in the statute itself, provided the
B accused person is 'prepared to and does furnish bail' and the person
released on bail under Section 167(2) of the Code should be deemed to
have been so released under the provisions of Chapter XXXII for the
purposes of that Chapter. Reference may be made to Hussai11ara Khatoon -+.
v. State of Bihar, [1979} 3 SCR 169 and Khatri and Others v. State of Bihar
C and Others, [1981] 1 SCC 627.

43. A doubtful question may arise as to whether the Magistrate can
detain the accused person for further period beyond the prescribed period
of ninety of sixty days if the accused is not prepared to and does not furnish
bail. This doubt is cleared by Explanation I of Section 167(2) stating the
D notwithstanding the expiry of the period specified in paragraph (a), the
accused shall be detained in custody so long as he does not furnish bail. We ~-
feel that it is not neces3ary, in this cnntext, to go in detail of the powers of
the Magistrate to extend the period of detention under Section 167(2) or
to remand the accused resorting to Exp,lanation I of Section 309 cor-
E responding to Explanation of Section 344 of the old Code since that
question is not germiµie to the issue pertaining to this case. However,
reference may be made to Chaganti Satyanarayana and Ors. v. State of
Andhra Pradesh, [1986] 3 SCC 131 paragraph 10.

44. To say differently, Section 167(2) in its entirety uses the expres-
F sion only 'detention' 'but not 'remand' (as found in Section 309 of the
Code). Under Section 167(2), the Magistrate of whom the accused person
is forwarded irrespective of the fact that whether he has or has not
jurisdicticn to try the case, authorises the detention of the accused in such
custody as he thinks fit for a term not exceeding fifteen days aud if he has
G no jurisdiction to try the case or commit it for trial, and considers further
detention unnecessary, he rr..ay order the accused to be forwarded to a
Magistrate having such jurisdiction. Under the proviso, the Magistrate can
authorise the detention for a specified period as envisaged in the proviso
to sub-section (2) of Section 167 of the Code beyond the period of fifteen
H days, on his being satisfied with the existence of adequate grounds.
DIRECTORATEOFENFORCEMENT v. DEEPAK [PANDIAN,J.] 471

45. Section 167 is one of the provisions falling under Chapter XII of A
the Code commencing from Section 154 and ending with Section 176 under
the caption 'Information to the police and other powers to investigate'.
Though Section 167(1) refers to the investigation by the police and the
transmission of the case diary to the nearest Magistrate as prescribed
under Lhe Code etc., the main object of sub-section (1) of Section 167 is
the production of an arrestee before a Magistrate within twenty-four hours
B
as fixed by Section 57 when the investigation cannot be completed within
that period so that the Magistrate can take further course of action as
contemplated under sub-section (2) of Section 167.

46. The first limb of sub-section (1) of Section 167 uses the expres- C
sion "person is arrested and detained in custody". The word "accused"
occurring in the second limb of sub-section (1) and in sub-section (2) of
Section 167 refers only that person "arrested and detained in custody".

47. The word 'arrest' is derived from the French 'Arreter' meaning D
'to stop or stay' and signifies a restraint of the person. Lexicologically, the
meaning of the word 'arrest' is given in various dictionaries depending
upon the circumstances in which the said expression is used. One of us, (S.
Ratnavel Pandian, J as he then was being the Judge of the High Court of
Madras) in Roshan Beevi v. Joint Secretary, Government of Tamil Nadu,
1985 Crl. L.J. had an occasion to go into the gamut of the meaning of the E
word 'arrest' with reference to various text books and dictionaries, the New
Encyclopedia Britanica, Halsbury's Laws of England, 'A Dictionary of Law'
by L.B. Curzon, Black's Law Dictionary and 'Words and Pharases'. On the
basis of the meaning given in those text books and laxicons, it has been
held that "the word 'arrest' when used in its ordinary and natural sense, F
means the apprehension or restraint or the deprivation of one's personal
liberty. The question whether the person is under arrest or not, depends
not on the legality of the arrest, but on whether he has bee~ deprived of
his personal liberty to go wherever he pleases. When used in the legal sense
in connection with criminal offences, an 'arrest' consists in the taking into
custody of another person under authority empowered by law, for the G
purpose of holding or detaining him to answer a criminal charge or of
preventing the commission of a criminal offence. The essential elements to
constitute an arrest in the above sense are that there must be an intent to
arrest under the authority, accompanied by seizure or detention of the
person in the manner known to law, which is so understood by the person H
472 SUPREME COURT REPORTS (1994) 1 S.C.R.

A arrested."

48. There are various Sections in Chapter V of the Code titled
"Arrest of persons" of which Sections 41, 42, 43 and 44 empower different
authorities and even private persons to arrest a person in given situation.
Section 41 deals with the power of a police officer to arrest any person
B without an order from a Magistrate and without a warrant. Section 42 deals
with the power of a police officer to arrest any person who in the presence
of a police officer has committed or has been accused of committing a
non-cognizable offence and who refuses on demand "to give his name and
residence or gives a name or residence which such officer has reason to
c believe to be false." Section 43 empowers any private person to arrest any
person who in his presence commits a non cognizable offence, or any
proclaimed offender. Section 44 states that when any offence is committed
in the presence of a Magistrate whether Executive or Judicial, within his
local jurisdiction, he may himself arrest or order any person to arrest the
D offender and may thereupon subject to the provisions contained in the
Code as to bail commit the offender to custody.
-~-

49. Thus the Code gives power of arrest not only to a police officer
and a Magistrate but also under certain circumstances or given situations
to private persons. Further, when an accused person appears before a
E Magistrate or surrenders voluntarily, the Magistrate is empowered to take
that accused person into custody and deal with him according to law.
Needless to emphasize that the arrest of a person is a condition precedent
for talcing him into judicial custody thereof. To put it differently, the taking
of the 1person into judicial custody is followed after the arrest of the person
F concerned by the Magistrate on appearance or surrender. It will be ap-
propriate, at this stage, to note that in every arrest, there is custody but not
vice-versa and that both the words 'custody' and 'arrest' are not synonymous
terms. Though 'custody' may amount to an arrest in certain circumstances
but not under all circumstances. If these two terms are interpreted as
synonymous, it is nothing but an ultra legalist interpretation which if under
all circumstances accepted and adopted, wotld lead to a startling anomaly
resulting in serious consequences, vide Roshan. Beevi (supra).

50. While interpreting the expression 'in custody' within the meaning
of Section 439 Cr. P.C., Krishna Iyer, J speaking for the Bench in Niranjan
H Singh and Another v. Prabhakar Rajaram Kltarote and Others, (1980] 2 SCC
DIRECTORATE OF ENFORCEMENT v. DEEPAK [PANDIAN,J.] 473

559 at 563 obseFVed that "He can be in custody not merely when the police A
arrests him; produces him before a Magistrate and gets a remand to
judicial or other custody. He can be stated to be in judicial custody when
he surrenders before the Court and submits to its directions."

51. The next vital question, in this connection, that crops up for
consideration is as to whether the registration of a case and the entries in B
the diary relating to that case as prescribed by the Code are sine-quo-non
for a Magistrate talcing into custody of a person when that person appears
or surrenders or is brought before the magistrate and whether that person
should have assimilated the characteristic of 'an accused of an offence' at
that stage itself within the meaning of sub-section {1) of Section 167 or C
sub-section {1) of Section 437 Cr. P.C.

52. This question is in a way answered in Gurbaksh Singh Sibbia etc.
v. State of Punjab, (1980) 3 SCR 383. While examining the scope of Section
438 of the Code in that case, Chandrachud, CJ spealcing for the Constitu-
tion Bench held that 'The filing of a first information report is not a D
condition precedent to the exercise of the powers under Section 438. The
imminence of a likely arrest founded on a reasonable belief can be shown
to exist even if an FIR is not yet filed."

53. The dictum laid down in that ca&e indicates that the registration E
of a case and the entries of the case diary are not necessary for entertaining
an application for grant of anticipatory bail, but the mere imminence of a
likely arrest on a reasonable belief on an accusation of having committed
a non-bailable offence, will be sufficient to invoke that provision.

54. In the backdrop of the above legal position, the conclusion that F
can be derived is that a Magistrate can himself arrest or order any person
to arrest any offender if that offender has committed an offence in his
presence and within his local jurisdiction or on his appearance or surre~der
or is produced before him and take that person (offender) into his custody
subject to the bail provisions. If a case is registered against an offender
arrested by the Magistrate and a follow up investigation is initiated, or if G
an investigation has emanated quo the accusations levelled against the
person appearing or surrendering or being brought before the Magistrate,
the Magistrate can in exercise of the powers conferred on him by Section
167 {2) keep that offender or person under judicial custody in case the
Magistrate is not inclined to admit that offender or person to bail. H
474 SUPREME COURT REPORTS (1994] 1 S.C.R.

A 55. The above deliberation leads to a derivation that to invoke
Section 167(1), it is not an indispensable pre-requisite condition that in all
circumstances, the arrest should have been effected only by a police officer
and none else and that there must necessarily be records of entries of a
case diary. Therefore, it necessarily follows that a mere production of an
arrestee before a competent Magistrate by an authorised officer or an
B Officer empowered to arrest (notwithstanding the fact that he is not a
police officer in its stricto sensu) on a reasonable belief that the arrestee
"has been guilty of an offence punishable" under the provisions of the
special Act is sufficient for the Magistrate to take that person into his
custody on his being satisfied of the three preliminary conditions, namely,
c (1) the arresting officer is legally competent to make the arrest; (2) that
the particulars of the offence or the accusation for which the person is
arrested or other grounds for such arrest do exist and are well-founded
and (3) that the provisions of the special Act in regard to the arrest of the
persons and the production of the arrestee serve the purpose of Section
D 167(1) of the Code.

56. In this background, it has become obligatory and imperative to
settle the spinal issue as to whether Section 35(2) of FERA and 104(2) of
the Customs Act serve as a substitute of Section 167(1) substantially
E fulfilling the basic conditions contained therein.

57. No doubt, there is no investigation by any officer equivalent or
comparable to an Officer in charge of police station or a police officer in
a proceeding under any of these two special Acts as contemplated under
F Chapter XII of the Code. But what Section 167 envisages is that the
arrestee is an accused or accused person against whom there is well-
founded information or accusation requiring an investigation. Firstly the
reason, given in the impugned judgment, for holding that Section 167(1) is
neither replaced nor substituted by any provision of the special Acts is that
G the arrestee by the authorised officer or empowered officer under the
FERA or Customs Act respectively cannot be said to be 'an accused' or
'accused person' which expressions are used in Section 167 or 'accused of
an offence' which expression is used in Article 20(3) of the Constitution
and in Sections 25 and 27 of the Evidence Act. In support of this reasoning,
some decisions of this Court have been relied upon about which we would
H deal at the later part of this judgment.
DIRECTORATEOFENFORCEMENT v. DEEPAK [PANDIAN,J.] 475

58. We shall presently ponder over the true meaning of the A
word/words "person", "accused", "accused person", "person accused of an
offence" and "Person accused of any offence" used in various provisions of
the varied laws in different context and scrutinise as to whether they are
interchangeable words and have the same connotation in and under all
situations and circumstances which exercise will render much assistance in
ascertaining the significance and import of the words, "persons", "accused"
B
appearing in Section 167 of the Code.

59. It is germane to note that though the word "person" is defined in
the Indian Penal Code (Section 11) and the General Clauses Act (Section
3(42)) which are identical and are not exhaustive but an inclusive one, the c
words "accused" or "accused person" or "accused of a offence" are not
defined either in the Indian Penal Code or in the Indian Evidence Act or
in the General Clauses Act, 1897. In the Code of Criminal Procedure also,
these words are not defined except an inclusive meaning of the word
"accused" is given in the Explanation to Section 273 of the Code of 1973, D
of course, confined only to the mode of taking and recording evidence in
the course of the trial or other proceedings as envisaged in the said Section.
Though this explanation of the word 'accused' limited to that Section 273
cannot and should not be strained and stretched to such an extreme extent
to make it applicable in all circumstances wherever the word 'accused'
appears in the Code, this explanations gives a clue, providing or suggesting E
an answer to the problem that we are trying to solve.

60. To perfectly understand the vital significance and impetus of the
introduction of this new explanation, one must take note of the legislative
change in the substantive provision of Section 273 which corresponds to p
Section 353 of the old Code which Section laid down the general rule that
at any inquiry or trial, all evidence "shall be taken in the presence of the
accused......... ". As recommended by the Joint Committee to make it dear
that the provision of this Section would apply not only to proceedings
against an accused but also other proceedings inclusive of the security
proceedings under Chapter VIII of the Code, the words and figures "under G
Chapters XVIII, XX, XXI, XXII, XXIII" occurring in old Section 353 have
been substituted in the present Section by the words "in the course of the
trial or other proceeding". Consequent upon the change in the substantive
part of the Section, it had become necessary to introduce the explanation
so that the evidence in security proceeding against a person also shall be H
476 SUPREME COURT REPORTS (1994] 1 S.C.R.

A taken in his presence or in the presence of his pleader when his personal
attendance is dispensed with.

The Relevant explanation reads :

''In this section, 'accused' includes a person in relation to whom any
B proceeding under Chapter XIII has been commenced under this
Code."

(emphasis supplied)

61. Chapter VIII deals with (1) security for keeping the peace (1) on
c conviction; (b) on information; and (2) with security for good behaviour,
covering Sections 106 to 124 of the Code. The provisions of this Chapter
are preventive in their scope and object and they are not intended to punish
but to prevent against possible hazard to the community as well as com- •
mission of crimes. There is no question of making any investigation by any
D police officer as contemplated under Chapter XII of the Code and for-
warding of any report under Section 173 (2) of the Code to a Magistrate
pertaining to security proceedings under this Chapter though such
proceedings are criminal in nature but not relating to any offence.

62. In none of the Sections in Chapter VIII, the words "accused" or
E "accused person" or "accused of an offence" or "accused of any offence"
are used barring the word "person" as deployed in Section 35 of the FERA
and 104 of the Customs Act..

63. We shall now examine this aspect of the matter in relation to
F other provisions of the Code.

64. The proviso to Section 113 of the Code states that if it appears
to a Magistrate "that the.re is reason to fear the commission of a: breach of
the peace and that such breach of the peace cannot be prevented otherwise
than by the immediate arrest of r~ch person may at any time issue a
G warrant of his arrest". The necessary corollary is that when the person after
his arrest on such warrant is produced before the Magistrate, the
Magistrate has either to detain him or to release him on bail. For the
enforcement of preventive action under Chapter VIII of the Code, the
officer in charge of a police station is authorised under Section 41(2) of
H the Code to arrest or cause to be arrested any person .belonging to one or
DIRUCTORATEOFENFORCEMENT v. DEEPAK [PANDIAN,J.) 477

some of the categories of persons specified in Sections 109 or 110 of the A
Code. It ·may be recalled in this context, that Magistrate under Section 122
of the Code can commit any person to prison if that person ordered to give
security under Section 106 or Section 117 of the Code does not give such
security. Similarly, under Section 151 which falls under Chapter XI under
the heading "Preventive action of the police", the police officer is em- B
powered to arrest a person so as to prevent the commiwon of a cognizable
offence whefe commission of the offence cannot be otherwise prevented.
Sub-section (2) of Section 15i restricts the period of detention of the
person arrested in custody for a period exceeiiing 24 hours unless his
further detention is required or authorised tmder any of the provisions of C
the Code or for any other law for the time being in force. In all the above
provisions of the Code, the word used is "person" alone.

65. Likewise, Section 41(1) of the Code which gives authority to a
police officer to arrest a person without warrant does not use the expres-
sion 'accused' or 'accused person' under any of the enumerated categories D
··(a) to (i) but uses the expression 'person'. However, the person arrested
..,. -r- under the provision of Section 41 (1) when produced before the Magistrate
is detained in exercise of the power vested on the Magistrate under
sub-sections (1) and (2) of Section 167. We have already referred to various
Sections empowering the Magistrate or any private person to effect and E
arrest and in that case also, the subsequent detention is made by the
Magistrate only in exercise of his powers under Section 167(2) of the Code.

66. As we have pointed out in the preceding part of this judgment,
that in the first limb of Section 167(1), the expression used is 'per-
son................... arrested and detained in custody' and the word 'accused' F
occurs only in the second limb of the same provision denoting that 'person
arrested and detained in custody' as envisaged in the first limb of that
section.

67. Section 35 of FERA and 104 of the customs Act which confer G
power on the prescribed officer to effect the arrest deploy only the word
'person' and not 'accused' or 'accused person' or 'accused of any offence'.
In fact, the word 'accused' appears only in the penal provisions of the
special Acts, namely, sub- section (4) of Section 56 of FERA and sub-sec-
tion (3) of Section 135 of the Customs Act while explaining as to what H
478 SUPREME COURT REP0RTS [1994) 1 S.C.R.

A would be the special and adequate reasons for awarding the sentence of
imprisonment for a sub-minimum period, though sub-sections (1) to (3) of
Section 56 of FERA and sub-sections (1) and (2) of Section 135 of Customs
Act use the expression 'person' who becomes punishable on conviction
under the penal provisions by the Court trying the offence.
B
68. In this context, a relevant doubtful question arises for deliberation
whether the expressions "person", "accused" or "accused person" found in
Section 167 of the Code and "person accused of any offence" used in
Article 20 (3) of the Constitution and Sections 25 and 27 of the Evidence
. Act denote one and the same meaning. Though it is not absolutely essential
C to exhaustively examine the connotation of these two expressions and
render our considered and reasoned opinion, yet it has become necessary
to ponder over to the limited question as to whether the expression
"accused" and "accused person" appearing in Section 167 (1) and (2) denote
"a person accused of any offence" at the stage of authorising detention on
D production of an arrestee before a Magistrate.

69. The legislative change in Section 436 of the old Code (about
which we shall deal with presently) and the introduction of the explanation
to Section 273 of the new Code as well as the legislative intendment of
E . some other provisions of the Code to be mentioned hereafter insinuate in
finding out the answer to the above query.

70. It may be noted in Section 436 of the old Code (1898) which
corresponded to Section 437 of the Code of 1861 and Section 298 of the
Code of 1872, the expression "accused person" alone was employed but
F subsequently, the ezj>ression was substituted by "person accused of an
offence" by Section 117 of Act of XVIII of 1923. This legislative change by
substituting the new expression was made in order to supersede a number
of rulings, rendered under the old Code (Section 437) employing the
words, "accused person" which held the Section applicable to proceedings
G against person proceeded under Chapter VIII also as "persons against
whom there is an accusation in the ordinary acceptation of the word".

71. In this connection, reference may be made to a judgment of the
Madras High Court in which Justice Miller in re KoraAyyappa and Another
H Cr.L.J. (11) 1910 Page 251 held that person ordered to give security for
DIRECTORATEOFENFORCEMENT v. DEEPAK (PANDIAN,J.] 479

keeping peace or to be of good behaviour are not persons accused of an A
offence.

72. The present Section 398 (power to order further inquiry) of the
new Code which corresponds to Section 436 of the old Code are similar
except for the substitution of the words 'Chief Judicial Magistrate' in place
of the words 'District Magistrate'. B

... 73. In other words, by the introduction of the expression "person
accused of an offence" Section 398 is made inapplicable to the security
proceedings as well as to proceedings under Sections 133, 144 and 145 or
the Code. C
74. The above legislative change of the expression in Section 436 of
the old Code serves as a guide in adjudging the distinction between the
two expressions "accused person" and "accused of an offence".

75. Let us now approach this aspect of the matter from different D
angle with reference to the provisions of Article 20(3) of the Constitution
as well as to Sections 24 to 27 of the Evidence Act.

76. The prohibitive sweep of Article 20(3) which imposes the ban on
self-accusation reads, "No person accused of any offence shall be com- E
pelled to be a witness against himself."

77. In explaining the intendment of Article 20(3), relating to search
and seizure of documents under Sections 94 and 96 of the old Code, a
eight-Judges Bench of this Court in M.P. Shanna and Others v. Satish
Chandra, District Magistrate, Delhi and Others, [1954] SCR 1077, held that F
one of the components for invoking sub-clause (3) of Article 20 should be
that it is a right pertaining to a person 'accused of an offence.'

78. Having regard to the facts therein, it has been held:

"The cases with which we are concerned have been presented to G
us on the footing that the persons against whom the search war-
rants were issued, were all of them persons against whom the First
Information Report was lodged and who were included in the
category of accused therein and that therefore they are persons
"accused of an offence" within the meaning of Article 20(3) and H
480 SUPREME COURT REPORTS [1994] 1 S.C.R.

A also that the documents for whose sean.:n the warrants were issued,
being required for investigation into the alleged offences, such
searches were for incriminating material."

79. Thereafter, a Constitution Bench of this Court in Raja Narayan/al
Bansilal v. Maneck, [1961] 1 SCR 417 at 438 while dealing with the import
B of Article. 20(3) with reference to certain provisions of the Indian Com-
panies Act made the following observation, relying on the decision in M.P.
Sharma (supra) :

"..............Similarly for invoking the constitutional right against tes-
timonial compulsion guaranteed under Art. 20(3) it must appear
c that a formal accusation has been made against the party pleading
the guarantee and that it relates to the commission of an offence
which in the normal course may result in prosecution. Here again
the nature of the accusation and its probable sequel or conse-
quence are regarded as important."
D
80. In the above two judgments, both the Benches have not discussed
the distinction between the expression 'accused person' and 'person ac-
cused of any offence'.

81. Subsequently, a eleven~Judges Bench of this Court in State of
E Bombay v. Kathi Kalu Oghad, [1962] 3 SCR 10 went into the question and
by majority concluded that an accused person cannot be said to have been .
compelled to be a witness against himself siniply because he made a
statement while in police custody, without anything more.

82. What is that 'anything more' required has been explained in the
F following words :

"(6) 'To be a witness' in its ordinary grammatical sense means
giving oral testimony in Court. Case law has gone beyond this strict
literal interpretation of the expression which may now bear a wider
meaning, namely, bearing testimony in a court or out of Court by
G
a person accused of an offence, orally or in writing.

(7) To bring the statement in question within the prohibition of
Art. 20(3), the person accused must have stood in the character
of an accused person at the time he made the statement. It is not
H enough that he should become an accused any time after the
DIRECTORATE OF ENFORCEMENT v. DEEPAK (PANDIAN,J.) 481

statement bas been made." A
See also Nandini Satpathy v. P.L. Dani and Another, (1978) 2 424.

83. The essence of the above decisions is that to bring a person within
the meaning of 'accused of any offence', that person must assimilate the
character of an 'accused person'. in the sense that be must be accused of B
any offence.

84. We think it is not necessary to interpret the expression, "person
accused of any offence" as appearing in Article 20(3) any fuore but suffice
to note that the same expression is found in Sections 25 and 27 of the C
Evidence Act.

85. It is apposite to note that Clauses (1) to (3) of Article 22 which
speak of a 'person arrested' use only the word 'person'. Article 22(2) states
that "every person who is arrested and detained in custody..........." A similar D
expression is used in Section 167(1) of the Code reading, "Whenever any
person is arrested and detained in custody........... ". Thus while referring to
a person arrested and detained neither Article 22 nor Section 167 employs
the expression 'accused of any offence'.

86. Coming to the provisions of the Evidence Act, Section 24 uses E
the expression 'accused person' whereas in Sections 25 and 27, the identical
expression 'person accused of any offence' is used. But in Section 26,
neither of these two expressions is used but 'any person'. It was only while
in examining the admissibility or otherwise of a statement of an 'accused
person' or 'a person accused of any offence', this Court in a series of F
judgments have dealt with the connotation of these two expressions but not
otherwise.

87. Justice J.C. Shah who w~s member of the Bench in Raja Narayan-
/al Bansilal (supra) speaking for the majority of a Constitution Bench in
State of Uttar Pradesh v. Deoman Upadhyaya, [1961] 1 SCR 14 has ob- G
served as follows :

"The ban which is partial under S. 24 and complete under S.25
applies equally whether or not the person against whom evidence
is sought to be led in a criminal trial was at the time of making H
482 SUPREME COURT REPORTS [1994) 1 S.C.R.

A the confession in custody. For the ban to be effective the peFson
need not have been accused of an offence when he made the
confession. The expression, "accused person" in S.24 and the ex-
pression "a person accused of any offence" have the same connota-
tion and describe the person against whom evidence is sought to
be led in a criminal proceeding."
B
88. The judgment in Deoman's case (supra) is referred to State of
Bombay v. Kathi Kalu Oghad (supra) but that Bench has not expressed any
view as to whether the expression 'accused person' and the expression _.,,..
'person accused of any offence' have the same connotation. But in none of
C these judgments, Section 167 has come up for interpretation.

89. In Ramesh Chandra Mehta v. State of West Bengal, AIR (1970)
SC 940 = (1969) 2 SCR 461, a constitution Bench of this Court while
examining the admissibility of a statement recorded under Section 171A of
D the Sea Customs Act of 1878 (which Act is now repealed) corresponding
to Section 108 of the Customs Act of 1962 has held that a person arrested
by a Customs Officer is not a person accused of an offence within the
meaning of Article 20(3) ~f the Constitution or within the meaning of ·
Section 25 of the Evidence Act.
E
90. In Veera Ibrahim v. State of Maharashtra, (1976) 2 SCC 302, a
Division Bench of this Court following the dictum laid down in Ra111esh
Chandra Mehta observed that in order to claim the benefit of the guarantee
against testimonial compulsion embodied in Clause (3) of Article 20 it must
be shown, firstly that the person who made the statement was "accused of
F any offence"; secondly that he inade the statement under compulsion. It
has been further held that when the statement of a person is recorded by
the Customs Officer under Section 108, he is not a person 'accused of an
offence under the customs Act', and that an accusation which would stamp
a person with the character of an accused of any offence is levelled only
G when the complaint is filed against that person by the Customs Officer
complaining of the commission of any offence under the provisions of the
Customs Act. _,.;,,.-.

91. In a recent decision, this Court in Poolpandi and Others v.
H Superintendent, Central Excise and Others, [1992) 3 sec 259 has reiterated
-~-

DIRECTORATEOFENFORCEMENT v. DEEPAK [PANDIAN,J.] 483

the same view and hela that a person being interrogated during investiga- A

.. tion under Customs Act or FERA is not a person accused of any offence
within the meaning of Article 20(3) of the Constitution. See also Percy
Rustomji Basta v. State of Maharashtra [1971) 1 SCC 847.

92. In this connection, reference may be made to a decision in
Raman/al Bhogilal Shah and Another v. D.K Guha and Others, [1973) 1 B
SCC 696, which has distinguished Ramesh Chandra Mehta and held on the
facts of that case that the person served with summons under the FERA,
was an accused within the meaning of Article 20(3) of the Constitution of
India. The decision in Raman/al Bhogilal has taken a different view to that
of Ramesh Chandra Mehta which view was examined in Poolpandi and was C
distinguished on the ground that the First Information Report in Ramanlal
Bhogilal Shah has been lodged earlier and consequently it was settled that
the person was accused of an offence within the meaning of Article 20(3).

93. Though this Bench is bound by the decisions of all the above D
Constitution Benches yet these decisions are distinguishable since none of
the above decisions relates to the interpretation of Section 167 of the Code
explaining the meaning of the word "accused" or "accused person" limited
to the purpose of Section 167. On the other hand, all those decisions are
rendered only on the question of admissibility or otherwise of the statement E
of a person arrested under the provisions of the general Act or special Acts
concerned and recorded while in the custody of the arrester.

94. A thorough and careful study of all the provisions of the Code
manifestly discloses that the word 'accused' in the Code denotes different
meanings according to the context in which it is deployed; in that some- F
times the said word is employed to denote a persbn arrested, sometimes a
person against whom there is an accusation, but who is yet not put on_ trial
and sometimes to denote a person on trial and so on.

95. It is apposite, in this context, to refer to the following passage G
found in Chapter 4 in the book titled, "The Loom of Language.":

"Words are not passive agents meaning the same thing and carrying
the same value at all times and in all contexts. They do not come
in standard shapes and sizes like coins from the mint, nor do they
go forth with a decree to all the world that they shall mean only H
484 SUPREME COURT REPORTS [1994) 1 S.C.R.

A so much, no more and no less. Through its own particular per-
sonality, each word has a penumbra of meaning which no
draftsman can entirely cut away. It refuses to be used as a piath-
ematical symbol."

96. It may not be out of place to mention here that an officer in
B charge of a police station who is empowered under Section 156 to inves-
tigate on an information received under section 154 or otherwise takes up
the investigation by proceeding to the spot "for the discovery and arrest of
the offender when he has reason to suspect the commission of an offence"
as contemplated under Section 157 of the Code. At that stage, the inves-
c tigating officer does not suddenly jump to a conclusion that the person
against whom the investigation has commenced has committed· an offence.
But he can arrive at to such conclusion only when the investigation con-
summates to a finality on the collection of evidence eliminating all
suspicion and establishing the commission of the offence. In case the
D investigating officer arrive& at a conclusion that no offence is made out he
forwards his final report to that effect.

97. The view of majority in the impugned judgment that the person
arrested under the FERA or Customs Act cannot fall within the meaning
E of the word 'accused' for invoking Section 167 solely based en the decisions
of this Court, namely, Ramesh Chandra Mehta as well as llias v. Collector
of Customs, Madras, A.I.R. (1970) S.C. 1065, is not logically concluded for
more than one reason;

98. Firstly, almost all the decisions of this Court holding that "a
F person arrested by an enforcement officer or customs officer, as the case
may be, is not a 'person accused of an offence' have been rendered only
in the context of examining the question of admissibility or otherwise of
the statement of a pers'Jn arrested under those special Acts but not with
reference to authorising the detention ·of an arrestee under Section 167 of
G the Code by a Magistrate and so the dictum laid down in those decisions
is dearly distinguishable;

99. Secondly, in the teeth of the newly introduced explanation to
Section 273 of 1973 Code it is made clear that the word 'accused' includes
H a person against whom any proceeding under Chapter VIII of the Code
DIRECTORATEOFENFORCEMENT v. DEEPAK [PANDIAN,J.] 485

has been commenced. Thus the explanation gives a clear clue that in given A
situation the word "person" can be construed as 'accused' or 'accused
person'.

100. Thirdly, in the Code different expressions are used under
various provisions to denote a person involving in a criminal proceeding B
such as 'offender', 'person', 'accused', 'accused person' accused of an
offence' depending on the nature of the proceeding.

101. Fourthly, the very legislative change made in Section 436 of the
old Code corresponding to Section 398 of the new Code substituting the
words "person accused of an offence" in the place of "accused person" as C
originally stood makes it clear that in the procedural Code, these two
expressions cannot always denote the same meaning or be construed as
synonymous or interchangeable and this legislative change indicates that
the Legislature in its wisdom intended to make a clear distinction between
these expressions for the reasons mentioned supta.
D
102. Fifthly, if the expression 'accused person' and 'a person accused
of an offence' are to be held denoting the same meaning and interchange-
able at all times and situations, it will become fallacious and pernicious in
the implementation of the procedural law of the Code.
E
103. Sixthly, in interpreting a statute in its true spirit, the right
direction should be to give a full and literal meaning to the language aiming
ever to show fidelity to the meaningful purpose of the statute and never to
make it ster~e and impotent by giving a strict literal interpretation putting
blinkers for judicial approach; because such interpretation will run counter F
to the legislative intent.

104. From the foregoing discussion, it is clear that the word 'accused'
or 'accused person' is us~ only in a generic sense in Section 167(1) and
(2) denoting the "person" whose liberty is actually restrained on his arrest
by a competent authority on well-founded information or formal accusation G
or indictment. Therefore, the word 'accused' limited to the scope of Section
167(1) and (2) - particularly in the light of Explanation to Section 273 of
the Code includes 'any person arrested'. The inevitable consequence that
follows is that 'any person is arrested' occurring in the first limb of Section
167(1) of the Code takes withln its ambit 'every person arrested' under H
-;t,-
1

486 SUPREME COURT REPORTS [1994) 1 S.C.R.

A Section 35 of FERA or 104 of the Customs Act also as the case may be
and the 'person arrested' can be detained by the magistrate in exercise of
his power under Section 167(2) of the Code. In other words, the 'person
arrested' under FERA or Customs Act is assitiiilated with the charac-
teristics of an 'accused' within the range of Section 167(1) and as such
B liable to be detained under Section 167(2) by a Magistrate when produced
before him.

105. In fact, Justice Y ogeshwar Dayal speaking for the majority in
Union of India v. O.P. Gupta & Ors. has rightly observed thus:

c "The expression 'accused' used in Section 167(2) of the Code is
not in the sense of accused under Article 20(3) of the Constitution
and/or Section 25 of the Indian Evidence Act with which the
Supreme Court was concerned in the cases of Ramesh Chander
Mehta and/or Illias. The word, "accused" in Section 167(2) \ of the
D Code is merely used in the sense of defining a person who has
been arrested, detained and produced before a Magistrate and not
in the sense of accused person under the Cm;toms Act and/or
Foreign Exchange Regulation Act since that person has been
defined in the aforesaid two judgments as only that person against
whom cognizance has been taken by the Magistrate on a complaint
E being filed. Therefore, the judgment of the Supreme Court in the
case of Ramesh Chander Mehta or Illias referred to above do not
stand in the way of applicability of Section 167(2) of the Code to
the person detained and produced by competent officer before the
Magistrate in pursuance of Section 104(2) of the the Customs Act
F or Section 3:5(2) of the Foreign Exchange Regulation Act."

106. Further, in the later part of his judgment the learned Judge has
observed;

"The word accused is to be construed in its widest connotations.
G
It means the one who is arrested and detained."

107. After having observed as above, it has been concluded by the
learned Judge thus:

H "Section 167(1) of the Code is already replaced by Section 104(2)
DIRECTORATE OF ENFORCEMENT v. DEEPAK [PANDIAN,J.] 487

of the Customs Act and Section 35(2) of the Foreign Exchange A
Regulation Act. What is to be done to a person who is so produced
before the Magistrate is dealt with only under Section 167(2) and
not under Section 167(1) of the Code."
... ~

108. Agreeing with the majority judgment in O.P. Gupta, and with B
the view of the High Court of Kerala in C./. U. Cochin v. P.K Ummerkutty,
1983 Crl. L.J. 1860 and NK Ayoob v. The Superintendent, C./. W., Cochin,
1984 Crl. L.J. 949, as well as of the Gujarat High Court in NH. Dave v.
Mohamed Akhtar, (1984) 15 E.L.T. 353, Arunachalam, J. of the Madras
High Court in his well-reasoned judgment in Senior lnterlligence Officer v.
M.KS. Abu Bucker, 1989 L.W. Crl. 325, has observed as follows: C

"Obviously in relation to a person arrested under the Customs Act,
Section 167(1), Crl. P.C., is covered suitably by s. 104(1) and (2)
of the Customs Act. In that event, the application of s. 167(2) of
the Code can pose no difficulty, except the consideration of the D
words 'accused person' used in that sub- section.

.......................................................... if we construe the words "an
accused person" in S. 167(2) of the Code, it will be clear that the
words would take in, the person who is arrested or detained in E
custody by the Customs Officer who had reason to believe that
such person was guilty of an offence punishable under S. 135 of
the Act.

................................................ Looked at in this background, the F
word 'accused' in Section 167(2), Crl. P.C., will have to be con-
strued in its widest connotation meaning "one who has been ar-
rested and detained" which will include even a person suspected
of having committed an offence.
G
................................................ I hold that the Magistrate has the
power to remand a person produced before him in accordance
with S. 104 of the Customs Act by virtue of the powers of remand
under S. 167(2) and (3) of the Code and could further exercise the
powers under S. 437 of the Code." H
488 SUPREME COURT REPORTS [1994) 1 S.C.R.

A 109. In our considered opinion, the view taken in O.P.· Gupta and
M.KS. Abu Bucker and also of the Kerala High Court and Gujarat High
Court is the logical and correct view and we approve the same for the
reasons we have given in the preceding part of this judgment. We, indeed,
see no imponderability in construing Section 35(2) of FERA and 104(2) of
Customs Act that the said provision replace Section 167(1) and serve as a
B
substitute thereof substantially satisfying all the required basic conditions
contained therein and that consequent upon such replacement of sub-sec-
tion (1) of Section 167, the arrested person under thor.c speciaf Acts would
be an accused person to be detained by the Magistrate under sub-section
(2) of Section 167. In passing, it may be stated that there is no expression
c 'police officer' deployed in Section 167(1) nor does it appear in any part
of Section 167(2). The authority for detaining a person as contemplated
under Section 167(2) is in aid of investigation to be carried on by any
prosecuting agency who is invested with the power of investigation.

D 110. We next proceed to consider the second question whether the
authorised or empowered officer under FERA or Customs Act exercises
all or any of the powers of a police officer outlined under Chapter XII of
the Code and conducts any investigation within the meaning of Section 2(h)
of the Code.
E
ill. The word 'investigation' is defined under Section 2(h) of the
present Code (which is an exact reproduction of Section 4(1)(1) of the old
Code) which is an incksive definition as including all the proceedings
under the Code for the collection of evidence conducted by a police officer
or any person (other than a Magistrate) who is authorised by a Magistrate
F in this behalf. The said word 'investigation' runs through the entire fabric
of the Code. There is a long course of decisions of this Court as well as of
the various High Courts e1."Plaining in detail, what the word 'investigation'
means and is? It is not necessary for the purpose of this case to recapitulate
all those decisions except the one in H.N. Rishbud v. State of Delhi, [1955)
G 1 S.C.R. 1150. In that decision, it has been held that "under the Code
investigation consists generally of the following steps: (1) Proceeding to the
spot, (2) Ascertainment of the facts and circumstances of the case, (3)
Discovery and arrest of the suspected offender, (4) Collection of evidence
relating to the commission of the offence which may consist of (a) the
H commission of various persons (including the accused) and the reduction
-'r
DIRECTORATEOFENFORCEMENT v. DEEPAK [PANDIAN,J.] 489

of their statement into writing, if the officer thinks fit, (b) the search of A
places or seizure of things considered necessary for the investigation and
to be produced at the trial, and (5) formation of the opinion as to whether
on the material collected there is a case to place the accused before a
Magistrate for trial and if so taking the necessary steps for the same by the
filing of a charge-sheet under Section 173." B
112. The steps involved in the course of investigation, as pointed out
in Rishbud's case have been reiterated in State of Madhya Pradesh v.
Mubarak Ali, -[1959] Supp. (2) S.C.R. 201.

113. No doubt, it is true that there is a series of decisions holding the C
view that an officer of enforcement or a customs officer is not a police
officer though such officer are vested with the powers of arrest and other
analogous powers. Vide Ramesh Chandra v. The State of West Bengal,
[1969] 2 S.C.R. 461 and lllias v. Collector of Customs, Madras, [1969] 2
S.C.R. 613. In the above decisions, this Court has held that the above D
officers under the special Acts are not vested with the powers of a police
officer quo investigation of an offence under Chapter XII of the Code
including the power to forward a report under Section 173 of the Code.
See also State of Punjab v. Barkat Ram, 3 S.C.R. 338 and Badaku Jyoti
Savant v. State of Mysore_, (1966] 3 S.C.R. 698.
E
114. As we have pointed out in the preceding part of this judgment,
Section 167(1) falls under Chapter XII relating to "Information to Police
and their powers to investigate." Sub- section (1) of Section 167 spealr..s of
the arrest by a police officer and the follow up investigation by him. Section
35(1) of FERA and Section 104(1) of the Customs Act empower the F
authorised officer under the relevant provisions to effect arrest of a person
against whom there is reason to believe that he has been guilty of an
offence under the respective concerned Act.

115. Neither the Police Act, 1861 (Act V of 1861) nor any other
statute defines the expression 'Police Officer'. Shortly stated, the main G
duties of the police are the prevention, detention and investigation of
---l crimes. As the powers and duties of the State have increased and are
increasing manifold, various Acts dealing with Customs, Excise, Forest,
Taxes etc. have come to be passed and consequently the prevention,
detention and investigation of offences as prescribed under those Act have H
490 SUPREME COURT REPORTS (1994] 1 S.C.R.

A come to be entrusted to officers with different nomenclatures appropriate
to the subject with reference to which they function. However, as stated· ~
supra, though the powers of customs officers and enforcement officer are
not identical to those of police officer quo the investigation under Chapter
XII of the Code yet the officers under the FERA and Customs Act are
B vested with certain powers similar to the powers of police officers.

116. The expression 'diary' referred to in Section 167(1) of the Code
is the special diary mentioned in Section 167(2) which should contain full
and unabridged statements of persons examined by the police so as to give
the Magistrates on a perusal of the said diary, a satisfactory and complete
C source of information which would enable him to decide whether or not
the accused person should be detained in custody but it is different from ·
the general diai-y maintained under Section 44 of the Police Act.

117. Though an authorised officer of Enforcement or Customs is not
D undertaking an investigation as contemplated under Chapter XII of the
Code, yet those officers are enjoying some analogous powers such as arrest,
seizures, interrogation etc. Besides, a statutory duty is enjoined on them to
inform the arrestee of the grounds for such arrest as contemplated linder
Article 22(1) of the Constitution and Section 50 of the Code. Therefore,
they have necessarily to make records of their statutory functions showing
E the name of the informant, as well as the name of the person who violated
any other provision of the Act and who has been guilty of an offence
punishable under the Code, nature of information received by thein, time
of the arrest, seizure of the contraband, if any and the statements recorded
during the course of the detection of the offence/offences.
F
118. Apart from those two special Act under consideration, there are
various Central Acts containing provisions of prevention of offences
enumerated therein and also for enforcement of the said provisions. Cer-
tain provisions of the Central Act which we would like to give below by
way of illustration in a tabular form showing the powers vested and the
G duties cast on the concerned officers will show that those officers enjoy
certain powers during the c-ourse of any investigation or inquiry or proceed-
ing under the special Act concerned though not in strict sense of an
investigation under Chapter XII of the Code as undertaken by police
officers including the filing of a police report under Section 173(2) of the
H Code.
Power to
Power to summon.
Power to
Power search Power Power persons to
Power to stop seize Power
SL to suspected to to ·give
Name of the Act and search goods, to
No. search persons, search examme evidence
conveyances documents arrest.
prmises entering or persons persons and
etc.
leaving India produce
documnets
1. Foreign Exchange Sec. 37 Sec. 34 Sec. 34 Sec. 36 Sec. 38 Sec. 35 Sec. 39 Sec. 40
Regulation Act,
1973
2. The Customs Act Sec.105 Sec.100 Sec.101 Sec.106 Sec.110 Sec.104 Sec.107 Sec.108
3. The Gold Sec. 58 - Sec. 60 Sec. 61 Sec. 66 Sec. 68 Sec. 64 Sec. 63
(Control) Act
(now repealed)
4. The Prevention of Sec. S. 6 to be r/w - - Sec. 10 Sec. - -
Food Adulteration 10(2) S.18 or the Sea lO(B)
Act. Customs Act.
5. The Railway Pro- Sec. 10 - - - - Sec. 6 - Sec. 9
perty (Unlawful &
Possession) Act. Sec. 11

0
492 SUPREME COURT REPORTS [1994) 1 S.C.R.

A 119. The above table manifestly imparts that all the powers vested on
various authorities as given in the table are equipollent as being enjoyed
by a police officer under the Code and exercised during investigation under
Chapter XII because the investigation is nothing but an observation or
· inquiry into the allegations, circumstances or relationships in order to
obtain factual information and make certain whether or not a violation of
B any law has been committed.

120. It should not be lost sight of the fact that a police officer making
an investigation of an offence representing the State files a report under
Section 173 of the Code and becomes the complainant whereas the
C prosecuting agency under the the special Acts files a complaint as a
complainant i.e. under Section 61(ii) in the case of FERA and under
Section 137 of the Customs Act. To say differently, the police officer after
consummation of the investigation files a report under Section 173 of the
Code upon which the Magistrate may take cognizance of any offence
D disclosed in the report under Section 190(1)(b) of the Code whereas the
empowered or authorised officer of the special Acts has to file only a
complaint of the facts constituting any offence under the provisions of the
Act on the receipt of which the Magistrate may take cognizance of the said
offence under Section 190(1)(a) of the Code. After taking cognizance of
the offence either upon a police report or upon receiving a complaint of
E facts, the Magistrate has to proceed with the case as per the procedure
prescribed under the Code or under the special procedure, if any,
prescribed under the special Acts. Therefore, the word 'investigation'
cannot be limited only to police investigation but on the other hand, the
said word is with wider connotation and flexible so as to include the
F investigation carried on by any agency whether he be a police officer or
empowered or authorised officer or a person not being a police officer
under the direction of a Magistrate to make an investigation vested with
the power of investigation.

121. It may be recalled, in this connection, that Section 202(1) of the
G Code falling under Chapter XV under the caption "Complaints to
Magistrates" envisages that any Magistrate on receipt of a complaint of an
offence of which he is authorised to take cognizapce or which has been
made over to him under Section 192 of the
I
Code Ican direct an investigation
to be made by a police officer or 'by such other person as he thinks fit'. As
H regards the conferment of power on such person, sub-section (3) of Section
DIRECTORATEOFENFORCEMENT v. DEEPAK [PANDIAN,J.] 493

202 reads, "if an investigation under sub-section (1) is made by a person A
not being a police officer, he shall have for that investigation all the powers
conferred by this Code on an officer in charge of a police station except the
power to arrest without warrant." The expression 'all the powers conferred
by this Code on an officer in charge of a police station' will include the
powers conferred on the police officer under the relevant provisions of B
Chapter XII also.

122. M.P. Thakkar, CJ of the Gujarat High Court (as he then was)
speaking for a Division Bench in N.H. Dave, Inspector of Customs v:
Mohmed Akhtar, (1984) 15 E.L.T. 353 (Guj.), while examining the import
of Section 104 of the Cu~toms Act has ruled thus: C
"The expression 'investigation' has been defined in Section 2(h). It
is an inclusive definition. No doubt it will not strictly fall under the
definition of 'investigation' in so far as the inclusive part is con-
cerned. But . then it being an inclusive definition the ordinary D
connotation of the expressiou 'investigation' cannot be overlooked.
An 'investigation' means search for material and facts in order to
find out whether or not an offence has been committed. It does
not matter whether it made by the police officer or a customs
officer who intends to lodge a complaint."
E
We are in total agreement with the above view of M.P. Thakkar, CJ.

123. The word 'investigation' though is not shown in any one of the
sections of the Customs Act, certain powers enjoyed by the police officer
during the investigation are vested on the specified officer of customs as F
indicated in the table given above. However, in the FERA the word
'investigation' is used in various provisions, namely, Sections 34, 36, 37, 38
and 40 reading, "........ any investigation or proceeding under this Act... ... "
though limited in its scope.

124. From the above discussion it cannot be said that either the G
Officer of Enforcement or the Cu_stoms Officer is not empowered with the
power of investigation though not with the power of filing a final report as
in the case of a police officer.

125. Lastly, it falls for out consideration whether Section 4(2) of the H

\
494 SUPREME COURT REPOR .....5 [1994] 1 S.C.R.

A Code of Criminal Procedure can be availed of for investigating, inquiring
or trying offences u\lder any other than the Indian Penal Code which
expression includes FERA and Customs Act etc.

126. Section 4(2) of the Code corresponds to Section 5(2) of the old
Code. Section 26(b) of the Code corresponds to Section 29 of the old Code
B
except for a slight change. Under the present Section 26(b) any offence
under any other law shall, when any Court is mentioned in this behalf in
such law, be tried by such Court and when no Court is mentioned in this
behalf, may be tried by the High Court or other court by which such
offence is shown in the First Schedule to be triable. The combined opera-
C tion of Sections 4(2) and 26(b) of the Code is that the offence complained
of should be investigated or inquired into or tried ac;cording to the
provisions of the Code where the enactment which creates the offence,
indicates no special procedure.

D 127. We shall now consider the applicability of provisions of Section
167(2) of the Code in relation to Section 4(2) to a person arrested under
FERA or the Customs Act and produced before a Magistrate. As we have
indicated above, a reading of Section 4(2) read with Section 26(b) which
governs every criminal proceeding as regards the course by which an
E offence is to be tried and as to the procedure to be followed, renderr: the
provisions of the Code applicable in the field not covered by the provisions
of the FERA or Customs Act.

128. We are not concerned with sub-section (1) of Section 4 in this
matter which provides for the procedure to be followed in every investiga-
F tion, inquiry or trial in relation to offences under the Indian Penal Code
stating that all offences under the Indian Penal Code "shall be investigated,
inquired into, tried and otherwise dealt with according to the provisions
hereinafter contained."

G- 129. In this context, Section 5 of the Code which is for all practical
purposes identical with the relevant portion of the corresponding Section
1(2) of the old Code, also may be referred to which states, "Nothing
contained in this Code shall, in the absence of a specific provision to the
contrary, affect any special or local law for the time being in force, or any
H special jurisdiction or power conferred, or any special form of procedure

I
Dl~ECTORATEOFENFORCEMENT v. DEEPAK [PANDIAN,J.) 495

prescribed by any other law for the time being in force." The expression A
'special law' or 'local law' is defined under Sections 41and42 of the Indian
Penal Code.

130. Desai, J in Viswa Mitter of Vijay Bharat Cigarette Stores v. O.P.
Poddar, [1983] 4 S.C.C. 701, speaking for the Bench on the import of B
Section 4(2) has stated thus:

"Section 190 thus confers power on any Magistrate to take cog-
nizance of any offence upon receiving a complaint of facts which
constitute such offence. It does not speak of any particular
qualification for the complainant. Generally speaking, anyone can C
put the criminal law in motion unless there is specific provision to
the contrary. This is specifically indicated by the provision of
sub-section (2) of Section 4 which provides that all offences under
any other law - meaning thereby law other than the Indian Penal
Code - shall be investigated, inquired into, tried and otherwise D
dealt with according to the provisions in the Code of Criminal
Procedure but subject to any enactment for the time being in force
regulating the manner or place of investigating inquiring into,
trying or otherwise dealing with such offences. It would follow as
a necessary corollary that unless in any statute other than the Code E
of Criminal Proct(dure which prescribes an offence and simul-
taneously specifies the manner or place of investigating, inquiring
into, trying or otherwise dealing with such offences, the provisions
of the Code of Criminal Procedure shall apply in respect of such
offences and they shall be investigated, inquired into, tried and
F
otherwise dealt with according to the provisions of the Code of
Criminal Procedure."

131. InA.R. Antulay v. Ramdas Sriniwas Nayak, [1984] 2 S.C.R. 914,
a Constitution Bench of this Court while examining the similar question
with regard to applicability of Section 4 with reference to the Prevention G
of Corruption Act has laid down the law thus:

"In the absence of a specific provision made in the statute indicat-
ing that offences will have to be investigated, inquired into, tried
and otherwise dealt with according to that statute, the same will H
496 SUPREME COURT REPORTS (1994) 1 S.C.R.

A have to be investigated, inquireJ into, tried and otherwise dealt
with according to the Criminal P.C. In other words, Criminal P.C
is the parent statute which provides for investigation, inquiring into
and trial of cases by criminal Courts of various designations."

132. To sum up, Section 4 is comprehensive and that Section 5 is not
B
in derogation of Section 4(2) and it only relates to the extent of application
of the Code in the matter of territorial and other jurisdiction but does not
nullify the effect of Section 4(2). In short, the provisions of this Code would
be applicable to the extent in the absence pf any contrary provision in the
Special Act or any special provision excluding the the jurisdiction or
c applicability of the Code. In fact, the second limb of Section 4(2) itself
limits the application of the provisions of the Code reading, "......but subjc-:t
to any enactment for the time being in force regulating the manner or place
of investigating, inquiring into, trying or otherwise dealing with such offen-
ces."
D
133. It is also significant to take note of the 'Objects and Reasons'
for the introduction of the present Section 104 of the Customs Act replac-
ing the then existi~g Sections 173, 174 and 175 of the Sea Customs Act with
some amendments one of which being, "in addition to the power to commit
iln arrested person to jail or order him to be kept in police custody, the
E Magistrate is being empowered to order the arrested person to be kept in
such other custody as he deems fit" - "Vide S. O.R. Gaz. of L'ldia 1962, Pt.
II, S. 2 Ext. p. 334.

134. The select Committee expressed its view on the proposed
amendment as follows:
F
"The Committee are of the view that an Officer of Customs
arresting a person under the clause should have the power to
release the arrested person on bail or otherwise similar to the
power conferred on the Officer in charge of a police station under
G the Code of Criminal Procedure, 1898 so as to obviate the necessity
of detaining an arrested person till he can be taken to a Magistrate.

The Committee feel that sub-clause (3) being merely a repetition
of the provisions of the Criminal Procedure Code, 1898 should be
H omitted."
DlRECI'ORATEOFENFORCEMENT v. DEEPAK [PANDIAN,J.) 497

,......._...._ 135. The view of the Committee expressed above can be taken as a A
guide in understanding the import of Section 35 of FERA.

136. The submission that as there is no investigation within the term~
of the Code in the field of FERA or Customs Act, Section 4(2) of the Code
can have no part to play, has to be rejected for the reasons given by us
while disposing of the contention "What investigation means and is" in the B
preceding part of this judgment.

. _,, 137. For the aforementioned reasons, we hold that the operation of
Section 4(2) of the Code is straightaway attracted to the area of investiga-
tion, inquiry and trial of the offences under the special laws including the
FERA and Customs Act and consequently Section 167 of the Code can be
c
made applicable during the investigation or inquiry of an offence under the
special Acts also inasmuch as there is no specific provisions contrary to
that excluding the operation of Section 167.

138. Though much argument was advanced on the expression 'other- D
~
wise dealt with', we think it is not necessary to go deep into the matter
except saying that the said expression is very wide and all comprehensive.
Vide Bhim Singh v. State of Uttar Pradesh, A.LR. (1955) S.C. 435 and Delhi
Administration v. Ram Singh, (1962] 2 S.C.R. 694.

139. There is a series of decisions of various High Courts, of course
E
with some exception, taking the view that a Magistrate before whom a
person arrested by the competent authority under the FERA or Customs
Act is produced, can authorise detention iu exercise of his powers under
Section 167. Otherwise the mandatory direction under the provision of
Section 35(2) of FERA or 104(2) of the Customs Act, to take every person F
arrested before the Magistrate without unnecessary delay when the arres-
tee was not released on bail under sub-section (3) of those special Acts,
will become purposeless and meaningl~ss and to say that the Courts even
in the event of refusal of bail have no choice but to set the person arrested
at liberty by folding their hands as a helpless spectator in the face of what
G
is termed as 'legislative causes omissus' or legal flaw or lacuna, it will
become utterly illogical and absurd .
..--4..,
140. We are in total agreement with the above view of the various
High Courts for the discussion made already and conclusions arrived at

" thereto. H
498 SUPREME COURT REPORTS [1994) 1 S.C.R.

A -i41. In the result, we hold that sub-sections (1) and (2) of Section
167 are squarely applicable with regard to the production and detention of
a person arrested under the provisions of Section 35 of FERA and 104 of
Customs Act and that the Magistrate has jurisdiction under Section 167(2)
to authorise detention of a person arrested by any authorised officer of the
B Enforcement under FERA and taken to the Magistrate in compliance of
Section 35(2) of FERA.

142. In the result, the impugned judgment of the Full Bench (five-
Judges) of the High Court holding the view that the law laid down in O.P.
. Gupta "regarding the powers available to a Magistrate under Section 167(2)
C of the the Code of Criminal Procedure to commit to custody a person taken
before him by the Customs Officer 1 is incorrect" is set aside. The law
enunciated in O.P. Gupta by a three-Judges Bench is the correct law and
accordingly the said decision is upheld.

The appeal is allowed accordingly.

G.N. Appeal allowed.