Supreme Court of India
OM PRAKASH & ANR.versusUNION OF INDIA & ANR.
- Citation
- 2011 INSC 728
- Decided
- 30 September 2011
- Disposal
- Disposed off
- Bench
- ALTAMAS KABIR
Holding
Offences under both the Central Excise Act, 1944 and the Customs Act, 1962 are deemed non‑cognizable and are bailable, and the officers empowered by those Acts may release arrested persons on bail.
Summary
The Supreme Court examined whether offences under the Central Excise Act, 1944 and the Customs Act, 1962 are non‑cognizable and, if so, whether they are bailable. It held that Section 9A of the Excise Act and Section 104(4) of the Customs Act expressly deem the offences non‑cognizable, and that the statutes themselves, particularly Sections 20 of the Excise Act and 104(3) of the Customs Act, mandate that the officer in‑charge of a police station must grant bail or forward the accused to a magistrate, thereby making the offences bailable. The Court further clarified that the powers of customs and excise officers to arrest and release on bail are akin to those of a police officer under the Code of Criminal Procedure. Consequently, the writ petitions were allowed, confirming the bailability of the offences and the authority of the officers to release arrested persons on bail.
Issues considered
- Whether offences under the Central Excise Act, 1944 are non‑cognizable.
- Whether offences under the Central Excise Act, 1944 are bailable.
- Whether offences under the Customs Act, 1962 are non‑cognizable.
- Whether offences under the Customs Act, 1962 are bailable.
- Whether customs and excise officers have the power to arrest without warrant and to release accused on bail under the respective statutes.
Legislation cited
- Central Excise Act, 1944s. 13, s. 18, s. 19, s. 20, s. 21, s. 9, s. 9A
- Code of Criminal Procedure, 1973s. 155, s. 2(1), s. 2(a), s. 2(c), s. 41, s. 42, s. 436, s. 46
- Customs Act, 1962s. 104(3), s. 104(4), s. 135
- Indian Penal Code, 1860s. 194, s. 195, s. 466, s. 467, s. 476, s. 477, s. 505
Subjects
non‑cognizable offencebailable offenceCentral Excise ActCustoms Actarrest without warrantbailspecial statutesSection 9ASection 104Code of Criminal Procedure
Judgment
(2011] ·14 lADDLJ S.C.R. 240
A OM PRAKASH & ANR.
V.
UNION OF INDIA & ANR.
(Writ Petition (Crl.) No. 66 of 2011)
SEPTEMBER 30, 2011
B
[ALTAMAS KABIR, CYRIAC JOSEPH AND SURINDER
SINGH NIJJAR, JJ.]
Central Excise Act, 1944/Customs Act, 1962 - ss. 9A!
C 104(3) - Duty evasion and other offences under- Held: Are
non-cognizable and bailable - Provisions of s. 104(3) of the
1962 Act and s. 13 of the 1944 Act, vest customs officers and
excise officers with the same powers as that of a police officer
in charge of a police station, which include the power to
D release on bail upon arrest in respect of offences committed
under the two enactments which are uniformly non-cognizable
- If person arrested offers bail, he should be released on bail.
The question which arose for consideration in these
matters is that whether all offences under the Central
E Excise Act, 1944 and the Customs Act, 1962 are non-
cognizable and, if so, whether such offences are bailable.
Allowing the Writ Petitions and disposing of the
Criminal Misc. Petition, the Court
F
HELD: 1.1 Sub-section (1) of Section 9A of the
Central Excise Act, 1944, states in completely
unambiguous terms that notwithstanding anything
contained in the Code of Criminal Procedure, offences
G under Section 9 shall be deemed to be non-cognizable
within the meaning of that Code. There is, therefore, no
scope to hold otherwise. The expression "bailable
offence" has been defined in Section 2(a) of the C.ode to
mean an offence which is either shown to be bailable in
H 240
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 241
the First Schedule to the Code or which is made bailable A
by any other law for the time being in force. The First
Schedule to the Code consists of Part 1 and Part 2. While
Part 1 deals with offences under the Penal Code, Part 2
deals with offences under other laws. Accordingly, if the
provisions of Part 2 of the First Schedule are to be B
applied, an offence in order to be cognizable and bailable
would have to be an offence which is punishable with
imprisonment for less than three years or with fine only,
being the third item under the category of offences
indicated in the said Part; An offence punishable with c
imprisonment for three years and upwards, but not more
than seven years, has been shown to be cognizable and
non-bailable. If, however, all offences under Section 9 of
the 1944 Act are deemed to be non-cognizable, then, in
such event, even the second item of offences in Part 2 0
could be attracted for the purpose of granting bail since
all offences under Section 9 of the 1944 Act are deemed
to be non-cognizable. [Para 24] [259-F-H; 260-A-E] ·
1.2 Section 2(i) Cr.P.C. defines a "non-cognizable
offence", in respect whereof a police officer has no E
authority to arrest without warrant. The said definition
defines the general rule since even under the Code some
offences, though "non-cognizable" have been included
in Part I of the First Schedule to the Code as being non-
bailable. In the instant case, the concern is with the F
offences under a specific Statute which falls in Part 2 of
the First Schedule to the Code. However, the language
of the Scheme of 1944 Act seem to suggest that the main
object of the enactment of the said Act was the recovery
of excise duties and not really to punish for infringement G
of its provisions. The introduction of Section 9A into the
1944 Act by way of amendment reveals the thinking of the
legislature that offences under the 1944 Act should be
non-cognizable and, therefore, bailable. From Part 1 of
the First Schedule to the Code, it will be clear that as a H
242 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A general rule all non-cognizable offences are bailable,
except those indicated above. The said provisions, which
are excluded from the normal rule, relate to grave
offences which are likely to affect the safety and security
of the nation or lead to a consequence which cannot be
B revoked. [Para 26) [260-G-H; 261-A-D]
1.3 The definition of "non-cognizable offence" in
Section 2(1) of the Code makes it clear that a non-
cognizable offence is an offence for which a police officer
has no authority to arrest without warrant. The
C expression "cognizable offence" in Section 2(c) of the
Code means an offence for which a police officer may,
in accordance with the First Schedule or under any other
law for the time being in force, arrest without warrant. In
other words, on a construction of the definitions of the
D different expressions used in the Code and also in
connected enactments in respect of a non-cognizable
offence, a police officer, and, in the instant case an excise
officer, would have no authority to make an arrest without
obtaining a warrant for the said purpose. The same
E provision is contained in Section 41 of the Code which
specifies when a police officer may arrest without order
from a Magistrate or without warrant. [Para 27) [261-E-G)
1.4 The offences under the 1944 Act cannot be
F equated with offences under the Penal Code which have
been made non-cognizable and non-bailable. In fact, in
the Code itself exceptions have been carved out in
respect of serious offences directed against the security
of the country, which though non-cognizable have been
made non-bailable. However, sub-section (2) of Section
G 9A makes provision for compounding of all offences
under Chapter II. Significantly, Chapter II of the 1944 Act
deals with levy and collection of duty and offense under
the said Act have been specified in Section 9, which
provides that whoever commits any of the offense set out
Lj
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 243
in Section 9, would be punishable in the manner A
indicated under Sub-section (1) itself. What is even more
significant is that Section 20 of the 1944 Act, provides
that the Officer in-Charge of a police station to whom any
person is forwarded under Section 19, shall either admit
him to bail to appear before the Magistrate having B
jurisdiction, or on his failure to provide bail, forward him
in custody to such Magistrate. The said provision clearly
indicates that offences under the Central Excise Act, as
set out in Section 9 of the Act, are bailable, since the
Officer in-Charge of a police station has been mandated c
to grant bail to the person arrested and brought before
him in terms of Section 19 of the Act. [Paras 28 and 29]
(261-H; 262-A-F]
1.5 In view of the provisions of Sections 9 and 9A
read with Section 20 of the 1944 Act, offences under the D
Central Excise Act, 1944, besides being non-cognizable,
are also bailable, though not on the logic that all non-
cognizable offences are bailable, but in view of the said
provisions of the 1944 Act, which indicate that offences
under the said Act are bailable in nature. (Para 30) [263- E
B]
1.6 The provisions of the Customs Act, 1962 and
Central Excise Act, 1944 on the issue whether offences
under both the said Acts are bailable, are not only similar,
but the provisions of the two enactments are also in pari F
materia in respect thereof. [Para 42] [268-E]
1.7 The provisions of Section 104(3) of the Customs
Act, 1962, and Section 13 of the Central Excise Act, 1944,
vest Customs Officers and Excise Officers with the same
powers as that of a Police Officer in charge of a Police C.
Station, which include the power to release on bail upon
arrest in respect of offences committed under the two
. enactments which are uniformly non-cognizable. Both
Section 9A of the 1944 Act and Section 104(4) of the
Customs Act, 1962, provide that notwithstanding ti
244 SUPREME COURT REPORTS [2011] 14 (ADDL.) $.C.R.
A anything in the Code of Criminal Procedure, offences
under both the Acts would be non-cognizable. [Para 43]
[268-F-H]
1.8. The offences under the Customs Act, 1962 must
also be held to be bailable. Consequently, as in the case
B of offences under the Central Excise Act, 1944, the
offences under Section 135 of the Customs Act, 1962, are
bailable and if the person arrested offers bail, he should
be released on bail in accordance with the provisions of
sub-Section (3) of Section 104 of the Customs Act, 1962,
C if not wanted in connection with any other offence. [Para
44] [269-B-D]
Ramesh Chandra Mehta v. State of West Bengal AIR
1970 SC 940; Directorate of Enforcement v. Deepak
Mahajan (1994) 3 SCC 440: 1994 (1) SCR 445; Union of
D India v. Padam Narian Aggarwal 2008 (231) ELT 397(SC);
Sunil Gupta v. Union of India 2000 (118) ELT 8 P&H; Bhavin
lmpex Pvt. Ltd. v. State of Gujarat 2010 (260) ELT 526 (Guj);
Superintendent of Police, CBI & Ors. v. Tapan Kumar Singh
(2003) 6 SCC 175: 2003 (3) SCR 485; Bhupinder Singh v.
E Jamail Singh (2006) 6 SCC 207; Commissioner of Customs
v. Kanhaiya Exports (P) Ltd. Civil Appeal No.81 •of 2002;
Union of India v. Padam Narain Aggarwal (2008) 13 SCC 305:
2008 (14) SCR 179; N.H. Dave, Inspector of Customs v.
Mohd. Akhtar Hussain Ibrahim Iqbal Kadar Amad Wagher
F (Bhatt) & Ors. 1984 (15) ELT 353 (Guj.) - Referred to.
Case Law Reference:
AIR 1970 SC 940 Referred to Para 18
1994 (1) SCR 445 Referred to Para 19
G
2008 (231) ELT 397(SC) Referred to Para 20
2000 (118) ELT 8 P&H Referred to Para 20
2010 (260) ELT 526 (Guj) Referred to Para 20
H 2003 (3) SCR 485 Referred to Para 23
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 245
c2oos) s sec 201 Referred to Para 23 A
2008 (14) SCR 179 Referred to Para 38
1984 (15) ELT 353 (Guj.) Referred to Para 39
CRIMINAL ORIGINAL JURISDICTION : Under Article 32 B
of the Constitution of India.
Writ Petition (Criminal) No. 66 of 2011.
WITH
c
W.P. (Crl.) No. 85 of 2010
W.P: (Crl.) No. 74 of 2011
W.P. (Crl.) No. 87 of 2011
D
W.P. (Crl.) No. 101 of 2011
W.P. (Crl.) No. 102 of 2011
W.P. (Crl.) No. 74 of 2010
E
W.P. (Crl.) No. 36 of 2011
W.P. (Crl.) No. 37 of 2011
W.P. (Crl.) No. 51 of 2011
F
W.P. (Crl.) No. 84 of 2011
Crl. MP No. 10673 of 2011 in W.P. (Crl.) No. 76 of 2011 ..
P.P. Malhotra and Mohan Prasaran, AAG, Mukul Rohatgi,
Atul Nanda and U.U. Lalit, Sujay N. Kantawala, Vikram G
Chaudhary, Saurabh Kirpal, Sanjay Agarwal,· Di!ip Kumar
Sharma, Jyoti Taneja, R.K. Adsure, Rakesh Dahiya, Nikhil Jain,
Vikram Choudhary, Gauram Awasthi (AOR), Satish Pandey,
Ranjeeta Rohatgi, Dikhsa Rai, Ravindra Keshavrao Adsure,
Rajiv Nan~a. Naresh Kaushik, Chetan Chawla, D.L. Chidanand, H
246 SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.
A B.K. Prasad, T.A. Khan, Ch. Shamunddin Khan, Arvind Kumar
Sharma, 8. Krishna Prasad, Satish Aggarwala, Sushil Kaushik,
Anirudha Sharma, Anando Mukherjee, Harsh N. Parekh, Arvind
Kumar Sharma, Rajiv Nanda, D.L. Chidaranda, R.
Balasubramanium, A.K. Sharma, Anirudh Sharma, Anando
B Mukherjee, Asha Gopalan Nair and Shankar Chillarge for the
appearing parties.
The Judgment of the Court was.delivered by
ALTAMAS KABIR, J. 1. Two sets of matters have been
c heard together, one relating to the provisions of the Customs
Act, 1962, and the other involving the provisions of the Central
Excise Act, 1944, since the issue in both sets of matters is the
same. The common question in these two sets of matters is
that since all offences under the Central Excise Act, 1944 and
0 the Customs Act, 1962, are non-cognizable, are such offences
bailable? Although, the provisions of both the two Acts in this
regard are pari materia to each other, we shall first take up the
matters relating to the Central Excise Act, 1944, hereinafter
referred to as "the 1944 Act", namely, (1) Writ Petition (Crl)
E No.66 of 2011, Om Prakash & Anr. Vs. Union of India & Anr.,
which has been heard as the lead case, (2) Writ Petition No.85
of 2010 and (3) Writ Petition (Crl.) Nos.74, 87, 101 and 102 of
2011.
2. Section 9A of the 1944 Act, which was introduced in
F the Act with effect from 1st September, 1972, provides that
certain offences are to be non-cognizable. Since we shall be
dealing with this provision in some detail, the same is extracted
hereinbelow :-
"9A. Certain offences to be non-cognizable. - (1)
G Notwithstanding anything contained in the Code of
Criminal Procedure, 1898 (5 of 1898), offences under
section 9 shall be deemed to be non-cognizable within the
meaning of that Code.
H (2) Any offence under this Chapter may, either before
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 247
[ALTAMAS KABIR, J.]
or after the institution of prosecution, be compounded by A
the Chief Commissioner o(Central Excise on payment, by
the person accused of the offence to the Central
Government, of such compounding amount and in such
manner of compounding, as may be prescribed.
B
Provided that nothing contained in this sub-section
shall apply to -
(a) a person who has been allowed to compound once
in respect of any of the offences under the
provisions of clause (a), (b), (bb), (bbb), (bbbb) or C
(c) of sub-section (1) of Section 9;
(b) a person who has been accused of committing an
offence under this Act which is also an offence
under the Narcotic Drugs and Psychotropic D
Substances Act, 1985 (61 of 1985);
(c) a person who has been allowed to compound once
in respect of any offence under this Chapter for
goods of value exceeding rupees one crore;
E
(d) a person who has been convicted by the court under
this Act on or after the 30th day of December,
2005."
3. What is important is the non-obstante clause with which
F
the Section begins and in very categorical terms makes it'clear
that notwithstanding anything contained in the Code of Criminal
Procedure, offences under Section 9 of the 1944 Act would be
deemed to be non-cognizable within the meaning of the Code.
In fact, Sub-section (2) of Section 9A also provides for G
compounding of offences upon payment of the compounding
amount with the exceptions as mentioned in the proviso thereto.
4. Mr. Mukul Rohatgi, learned senior counsel appearing for
the Petitioners in both sets of matters, submitted that since the
expressions "cognizable" or "non-cognizable" or even "bailable H
248 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A offences" had not been defined in either the 1944 Act or the
Customs Act, 1962, one would have to refer to the provisions
of the Code of Criminal Procedure, 1973 (Cr.P.C.) to
understand the meaning of the said expressions in relation to
criminal offences. Section 2(a) Cr.P.C. defines "bailable
B offence" as follows :-
"2(a). "bailable offence" means an offence which is shown
as bailable in the First Schedule, or which is made bailable
by any other law for the time being in force; and "non-
bailable offence" means any other offence;"
c
Section 2(c) defines "cognizable offence" as follows :-
"2(c). "cognizable offence" means an offence for which, and.
"cognizable case" means a case in which, a police officer
D may, in accordance with the First Schedule or under any
other law for the time being in force, arrest without warrant;"
Section 2(1) defines "non-cognizable offence" as follows :-
"2(1). "non-cognizable offence" means an offence for which,
E and "non-cognizable case" means a case in which, a police
officer has no authority to arrest without warrant;"
5. Mr. Rohatgi then submitted that offences which are
punishable under the 1944 Act have been indicated in Section
F 9 of the said Act and these sets of cases relate to the offences
indicated in Section 9(1)(d) of the said Act. Section 9(1)(d) is
again divided into two sub-clauses and reads as follows:-
"9. Offences and penalties. (1) Whoever commits any of
the following offences, namely:-
G
(a) to (c)
(d) attempts to commit, or abets the commission of,
any of the offences mentioned in clauses (a) and
H
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 249
[ALTAMAS KABIR, J.]
(b) of this section; A
shall be punishable,-
(i) in the case of an offence relating to any excisable
goods, the duty leviable thereon under this Act
exceeds one lakh of rupees, with imprisonment for 8
a term which may extend to seven years and with
fine:
Provided that in the absence of special and adequate
reasons to the contrary to be recorded in the judgment of C
the Court such imprisonment shall not be for a term of less
than six months;
(ii) in any other case, with imprisonment for a term
which may extend to three years or with fine or with
0
both." ·
6. What is of significance is that offences covered by
clauses (a) and (b) and the subsequent amendments thereto
relating to any excisable goods, where the duty leviable thereon
under the Act exceeds one lakh of rupees, would be punishable E
with imprisonment for a term which may extend to seven years
and with fine, whereas under Section 9(1)(d)(ii), in any other
case, the offence would be punishable with imprisonment for
a term which may extend to three years or with fine or with both.
F
7. Since the question of arrest is in issue in these sets of
cases, Mr. Rohatgi then referred to the provisions of Section
13 of the 1944 Act, which deals with the power to arrest in the
following terms:-
."13. Power to arrest: - Any Central Excise Officer not G
below the rank of Inspector of Central Excise may, with the
prior approval of the Commissioner of Central Excise,
arrest any person whom he has reason to believe to· be
liable to punishment under this Act or the rules made
·thereunder." H
250 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 8. Mr. Rohatgi submitted that the said power would have
to be read along with Sections 18, 19, 20 and 21 of the 1944
Act along with Section 155 Cr.P.C. Section 18 of the 1944 Act
provides for searches and how arrests are to be made under
the Act and rules framed thereunder and reads as follows :-
B
" 18. Searches and arrests how to be made.-
All searches made under this Act or any rules made
thereunder and all arrests made under this Act shall be
carried out in accordance with the provisions of the Code
of Criminal Procedure, 1973 (2 of 1974), relating
c respectively to searches and arrests made under that
Code."
9. Sections 19, 20 and 21 deal with how a person arrested
is to be dealt with after his arrest and the procedure to be
D followed by the Officer in-Charge of the police station concerned
to· whom any person is forwarded under Section 19. For the
sake of understanding the Scheme, the provisions of Sections
19, 20 and 21 of the 1944 Act are extracted hereinbelow ad
seriatim :-
E
"19. Disposal of persons arrested.· Every person
arrested under this Act shall be forwarded without delay
to the nearest Central Excise Officer empowered to send
persons so arrested to a Magistrate, or, if there is no such
Central Excise Officer within a reasonable distance, to the
F officer-in-charge of the nearest police station.
20. Procedure to be followed by officer-in-charge of
police station.- The officer-in-charge of a police station
to whom any person is forwarded under section 19 shall
G either admit him to bail to appear before the Magistrate
having jurisdiction, or in default of bail forward him in
custody to such Magistrate.
21. Inquiry how to be made by Central E;xcise Officers
H
against arrested persons forwardecfto them under
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 251
[ALTAMAS KABIR, J.]
Section 19.-(1) When any person is forwarded under A
section 19 to a Central Excise Officer empowered to send
persons so arrested to a Magistrate, the Central Excise
Officer shall proceed to enquire into the charge against
him.
·B
(2} For this purpose, the Central Excise Officer may
exercise the same powers and shall be subject to the
same provisions as the officer-in-charge of a police station
may exercise, and is subject to under the Code of Criminal
Procedure, 1898 (5 of 1898), when investigating a C
cognizable case:
Provided that -
(a) if the Central Excise Officer is of opinion that there is
sufficient evidence or reasonable ground of suspicion o
against the accused person, he shall either admit him to
bail to appear before a Magistrate having jurisdiction in
the case, or forward him in custody to such Magistrate;
(b) if it appears to the Central Excise Officer that there is E
not sufficient evidence or reasonable ground of suspicion
'against the accused person, he shall release the accused
person on his executing a bond, with or without sureties
as the Central Excise Officer may direct, to appear, if and
when so required,. before the Magistrate having
jurisdiction, and shall make a full report of all the particulars F
of the case to his official superior.•
10. As indicated in Section 18, all steps taken under
Sections 19, 20 and 21 would have to be taken in accordance
with the provisions of the Code of Criminal Procedure and the G
relevant provision thereof is Section 155 which deals with
information as to non-cognizable cases and investigation of
such cases, since under Section 9A of the 1944 Act all offences
under the Act are non-cognizable. For the sake of reference
Section 155 Cr.P.C. is extracted hereinbelow :- H
252 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A "155. Information as to non-cognizable cases and
investigation of such cases.- (1) When information is
given to an officer in charge of a police station of the
commission within the limits of such station of a non-
cognizable offence, he shall enter or cause to be entered
B the substance of the information in a book to be kept by
such officer in such form as the State Government may
prescribe in this behalf, and refer, the informant to the
Magistrate.
(2) No police officer shall investigate a non-cognizable
c case without the order of a Magistrate having power to try
such case or commit the case for trial.
(3) Any police officer receiving such order may exercise
the same powers in respect of the investigation (except
D the power to arrest without warrant) as an officer in charge
of a police station may exercise in a cognizable case.
(4) Where a case relates to two or more offences of which
at least one is cognizable, the case shall be deemed to
be a cognizable case, notwithstanding that the other
E
offences are non-cognizable."
11. As will be evident from the aforesaid provisions of
Section 155 Cr.P.C., no police officer in charge of a police
station is entitled to investigate a non-cognizable case without
F the order of a Magistrate having the power to try such case or
to commit the case for trial. Furthermore, no such police officer
is entitled to effect arrest in a non-cognizable case without a
warrant to effect such arrest. According to Mr. Rohatgi, since
all offences under the 1944 Act, irrespective of the length of
G punishment are deemed to be non-cognizable, the aforesaid
provisions would fully apply to all such cases. This now brings
us to the question as to whether all offences under the 1944
Act are bailable or not. As has been indicated hereinbefore in
this judgment, Section 2(a) of the Code defines "bailable
H offence" to be an offence shown as bailable in the First
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 253
[ALTAMAS KABIR, J.]
Schedule to the Code or which is made bailable by any other A
law for the time being in force. The First Schedule to the Code
which deals with classification of offences is in two parts. The
first part deals with offences under the Indian Penal Code, while
the second part deals with classification of offences in respect
of other laws. Inasmuch as, the offences relate to the offences B
under the 1944 Act,. it is the second part of the First Schedule
which will have application to the cases in hand. The last item
in the list of offences provides that if the offence is punishable
with imprisonmentfor less than three years or with fine only, the
offence will be non-cognizable and bailable. Accordingly, if the c·
offences come under the said category, they would be both non-
cognizable as well as bailable offences. However, in the case
of the 1944 Act, in view of Section 9A, all offences under the
Act have been made non-cognizable and having regard to the
provisions of Section 155, neither could any investigation be 0
commenced in such cases, nor could a person be arrested in
respect of such offence, without a warrant for such arrest.
12. Mr. Rohatgi submitted that Section 20 of the 1944 Act
would also make it clear that the Officer in-Charge of a police
station to whom any person arrested is forwarded under · E
Section 19, shall either admit him to bail to appear before the
Magistrate having jurisdJction, or' in default of bail forward him
in custody to such Magistrate. In other words, unless the offence
was bailable, the Officer in-Charge of the police station would
not have been vested with the power to admit him to bail and F
tc:i direct him to appear before the Magistrate having jurisdiction.
Mr. Rohatgi pointed out that Section 21 which deals with the
manner in which the enquiry is to be made by the Central Excise
Officer against the arrested person forwarded to him under
Section 19, is similar to the procedure prescribed under G
Section 20.
13._The submissions made by Mr. Rohatgi will have to be
considered in the context of the provisions of Sections 9A, 13
and 18 to 21 of ttie 1944 Act and Section 155 Cr.P.C.
H
254 SUPREME COURT REPORTS [2011) 14 (ADDL.) S.C.R.
A 14. Section 41 of the Code provides the circumstances
in which a police officer may, without an order from a
Magistrate and without a warrant, arrest any person. What is
relevant for our purpose are Sub-section (1)(a) and Sub-section
(2) of Section 41 which are extracted hereinbelow:-
B
"41. When police may arrest without warrant- (1) Any
police officer may without an order from a Magistrate and
without a warrant, arrest any person-
(a) Who has been concerned in any cognizable offence,
c or against whom a reasQnable complaint has been made,
or credible information has been received, or a
reasonable suspicion exists, of his having been so
concerned; or
D (b) to (h) ...............................................................
(2) Any officer in c~arge of a police station may, in like
manner, arrest or cause to be arrested any, person,
belonging to one or more of the categories of persons
specified in section 109 or section 1-10."
E
15. An exception to the provisions of Section 41 has been
made in Section 42 of the Code which enables a police officer
to arrest a person who has committed in the presence of such
officer or has been accused of committing a non-cognizable
F offence refuses, on demand of such officer, to give his name
and residence or gives a name or residence which such officer
has reason to believe to be false.
16. One other provision of the Code referred to is Section
46 which deals with how arrests are to be made. The same
G merely provides the procedure for effecting the arrest for which
purpose the officer or other person making the same shall
actually touch or confine the body of the person to be arrested.
The said provision is not really material for a determination of
. the issues in this case and need not detain us.
H
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 255
[ALTAMAS KABIR, J.]
17. In this connection, Section 436 Cr.P.C. which provides A
in what cases bail could be taken, may be taken note of. The
said Section provides as under:-
"436. In what cases bail to be taken.-(1) When any
person other than a person accused of a non-bailable
8
offence is arrested or detained without warrant by an
officer in charge of a police station, or appears or is
brought before a court, and is prepared at any time while
in the custody of such officer or at any stage of the
proceeding before such court to give bail, such person C
shall be released on bail:
Provided that such officer or court, if he or it thinks
fit, may, instead of taking bail from such person, discharge
him on his executing a bond without sureties for his
appearance as hereinafter provided: D
Provided further that nothing in this section shall be
deemed to affect the provisions of sub-section (3) of
section 116 [or section 446A].
(2) Notwithstanding anything contained in sub-section (1), E
where a person has failed to comply with the conditions
of the bair-bond as regards the time and place of
attendance, the court may refuse to release him on bail,
when on a subsequent occasion in the same case he
appears before the court or is brought in custody and any F
such refusa,I shall be without prejudice to the powers of the
court to call upon any person bound by such bond to pay
the penalty thereof under section 446."
As will be evident from the above, when any person, other G
than a person accused of a non-bailable offence, is arrested
or detained without warrant by an Officer in-Charge of a polioo
. station, or is brought before a Court, and is prepared at any
time while in the custody of such officer or at any stage of the
proceeding before a Court to give bail, he shall be released H
256 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A on bail. In other words, in respect of a non-cognizable case, a
person who is arrested without warrant shall be released on bail
if he is prepared to give bail. The scheme of the Section is that
without a warrant, if a person is arrested by the Officer in-
Charge of a police station or if such person is brought before
s the Court, he is entitled to be released on bail, either by the
police officer, or the Court concerned.
18. The legal contentions indicated hereinabove were
opposed on behalf of the Union of India and the stand taken
by Mr. Mohan Parasaran, learned Additional Solicitor General,
C was that what was required to be considered in the Writ
Petitions was whether there is a power to arrest vested in the
officers exercising powers under Section 13 of the 1944 Act
without issuance of a warrant and whether such power could_
be exercised only after an FIR/complaint had been lodged
D under Section 13 of the aforesaid Act. It was also contended
that it was necessary to consider further whether criminal
prosecution or investigation could be initiated, which could lead
to arrest, without final adjudication of a dual liability. The last
contention raised was whether offences referred to in Section
E 9(1Hd)(i) of the 1944 Act were bailable or not on account of
the fact that in the said Act by a deeming fiction all offences
under the respective Sections are deemed to be non-
cognizable. Mr. Parasaran pointed out that the Preamble to the
1944 Act states that it is expedient to consolidate and ~mend
F the law relating to central excise duty on goods manufactured
or produced in certain parts of India. Under the Act it is the duty
of the officers to ensure that duty is not evaded and persons
who attempt to evade duty are proceeded against. The learned
Additional Solicitor General submitted that wide powers have
G been conferred on the Officers under the Act to enable them
to discharge their duties in an effective manner, though not for
the purpose of prevention and detection of crime, but to prevent
smuggling of goods or cl_andestine removal thereof and for due
realization of excise duties. It was also urged that the Officers
H under the said Act are not police officers and that the said
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 257
[ALTAMAS KABIR, J.]
question is no longer res integra. Consequently, in Ramesh A
Chandra Mehta Vs. State of West Bengal [AIR 1970 SC 940],
a Constitution Bench of this Court held that since a customs
officer is not a police officer, as would also be the case in
respect of an officer under the Excise Act, submissions made
before him would not be covered under Section 25 of the B
Evidence Act.
19. Mr. Prasaran submitted that the High Court had also
made a distinction on the basis that while Section 13 of the
1944 Act refers to a "person" and not to an "accused" or
"accused person", the power under the Central Excise Act is C
for arrest of any person who is suspected of having committed
an offence and is not an accused, but is a person who would
become an accused after the filing of a complaint or lodging
of an FIR, as was held by this Court in the case of Directorate
of Enforcement Vs. Deepak Mahajan [(1994) 3 SCC 440]. The D
learned ASG submitted that although under the powers
reserved under the Customs Act and the Excise Act to a
Customs Officer or a Central Excise Officer, as the case may
be, the said Officer would be entitled to exercise powers akin
to that of a police officer, but that did not mean that such · E
officers are police officers in the eyes of law. The said officers
had no authority or power to file an investigation report under
Section 173 Cr.P.C. and in all cases the officer concerned has
to produce the suspect before the Magistrate after investigation
for the purpose of remand. The learned ASG submitted that F
only on the filing of a complaint, can the criminal law be set in
motion.
20. Mr. Prasaran also urged that the power to arrest must
necessarily be vested in the Officer concerned under the 1944 G
Act for the efficient discharge of his functions and duties, inter
alia, in order to prevent and tackle the menace of black money
.and money laundering. Mr. Prasaran submitted that in Union
of India Vs. Pa dam Narian Aggarwal [2008 (231) ELT
397(SC)], this Court had held that even though personal liberty H
258 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A is taken away, there are norms and guidelines providing
safeguards so that such a power is not abused, but is exercised
on objective facts with regard to commission of any offence.
Reference was also made to the decision of the Punjab &
Haryana High Court in Sunil Gupta Vs. Union of India [2000
B (118) ELT 8 P&H] and Bhavin lmpex Pvt. Ltd. Vs. State of
Gujarat[2.010 (260) ELT 526 (Guj)), in which the issue, which
is exactly in issue in the present case, was considered and,
as submitted by the learned ASG, it has been held that the FIR
or complaint or warrant is not a necessary pre-condition for an
c Officer under the Act to exercise powers of arrest. It was also
submitted that the Petitioners had nowhere questioned the vires
of the Section granting power to investigate tc: the Officer under
the Act as being unconstitutional and ultra vires and as such in
case of any mistake or illegality in the exercise of such statutory
powers, the affected persons would always have recourse to
0
the Courts.
21. Coming to the question of the provisions of Section
9A of the 1944 Act wherein in Sub-section (1) it has been
clearly mentioned that notwithstanding anything contained in the
E Code of Criminal Procedure, offences under Section 9 shall be
deemed to be non-cognizable within the meaning of the Code,
the learned ASG submitted that the aforesaid Section does not
state anything as to whether such offences are also bailable
or not. It was contended that if the submissions made by Mr.
F Rohatgi on this point were to be accepted, it would mean that
all offences under Section 9, including offences punish11ble with
imprisonment upto seven years, would also be bailable, which
could not have been the intention of the legislators enacting the
1944 Act. Mr. Prasaran submitted that the provisions of
G Section 9A of the 1944 Act merely import the provisions of
Section 2(i) Cr.P.C., thereby debarring a "police officer" from
arresting a person without warrant for an offence under the Act.
It was submitted that Section 9A does not refer to a Central
Excise Officer and as such there is no embargo on an Officer
H under the 1944 Act from arresting a person.
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 259
[ALTAMAS KABIR, J.] •
22. Mr. Prasaran's next submission was with regard to the A
provisions of part 2 of the First Schedule to the Code of
Criminal Procedure and it was submitted that the same has to
be given a meaningful interpretation. It was urged that merely
because a discretion had been given to the Magistrate to
award punishment of less than three years, it must fall under B
the third head of the said Schedule and, therefore, be non-
cognizable and bailable. On the other hand, as long as the
Magistrate had the power to sentence a person for
imprisonment of three years or more, notwithstanding the fact
that he has discretion to provide a sentence of less than three c
year, the same will make the offence fall under the second head
thereby making such offence non-bailable. It was submitted that
in essence it is the maximum punishment which has to
determine the head under which the offence falls in Part 2 of
the First Schedule to the Code and not the use of discretion
0
by the Magistrate to award a lesser sentence.
23. In support of his submissions, Mr. Prasaran referred
to the decisions of this Court in Superintendent of Police, CBI
& Ors. Vs. Tapan Kumar Singh [(2003) 6 SCC 175] and
Bhupinder Singh Vs. Jarnail Singh [(2006) 6 SCC 207], to E
which reference will be made, if necessary.
24. As we have indicated in the first paragraph of this
judgment, the question which we are required to answer in this
batch of matters relating to the Central Excise Act, 1944, is F
whether all offences under the said Act are non-cognizable and,
if so, whether such offences are bailable? In order to answer
the said question, it would be necessary to first of all look into
the provisions of the said Act on the said question. Sub-section
(1) of Section 9A, which has been extracted hereinbefore, states G
in completely unambiguous terms that notwithstanding anything
contained in the Code of Criminal Procedure, offences under
Section 9 shall be deemed to be non-cognizable within .the
meaning of that Code, There is, therefore, no scope to hold
otherwise. It is in the said context that we will have to consider
H
260 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R .
..
A the submissions made by Mr. Rohatgi that since all offences
under Section 9 are to be deemed to be non-cognizable within
the meaning of the Code of Criminal Procedure, such offences
must also be held to be bailable. The expression "bailable
offence" has been defined in Section 2(a) of the Code and set
B out hereinabove in paragraph 3 of the judgment, to mean an
offence which is either shown to be bailable in the First
Schedule to the Code or which is made bailable by any other
law for the time being in force. As noticed earlier, the First
.Schedule to the Code consists of Part 1 and Part 2. While Part
c 1 deals with offences under the Indian Penal Code, Part 2
deals with offences under other laws. Accordingly, if the
provisions of Part 2 of the First Schedule are to be applied,
an offence in order to be cognizable and bailable would have
to be an offence which is punishable with imprisonment for less
than three years or with fine only, being the third item under the
0
category of offences indicated in the said Part. An offence
punishable with imprisonment for three years and upwards, but
not more than seven years, has been shown to be cognizable
and non-bailable. If, however, all offences under Section 9 of
the 1944 Act are deemed to be non-cognizable, then, in such
E event, even the second item of offences in Part 2 could be
attracted for the purpose of granting bail since, as indicated
above, all offences under Section 9 of the 1944 Act are
deemed to be non-cognizable.
F 25. This leads us to the next question as to meaning of
the expression "non-cognizable".
26. Section 2(i) Cr.P.C. defines a "non-cognizable
offence'', in respect whereof a police officer has no authority to
G arrest without warrant. The said definition defines the general
rule since even under the Code some offences, though "non-
cognizable" have been included in Part I of the First Schedule
to the Code as being non-bailable. For example, Sections 194,
195, 466, 467, 476, 477 and 505 deal with non-cognizable
offences which are yet non-bailable. Of course, here we are
H
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 261
[ALTAMAS KABIR, J.]
concerned with offences under a specific Statute which falls in A
Part 2 of the First Schedule tci the Code. However, the language
of the Scheme of 1944 Act seem to suggest that the main
object of the enactment of the said Act was the recovery of
excise duties and not really to punish for infringement of its
provisions. The introduction of Section 9A into the 1944 Act by B
way of amendment reveals the thinking of the legislature that
offences under the 1944 Act should be non-cognizable and,
therefore, bailable. From Part 1 of the First Schedule to the
Code, it will be clear that as a general rule all non-cognizable
offences are bailable, except those indicated hereinabove. The c
said provisions, which are excluded from the normal rule, relate
to grave offences which are likely to affect the safety and
security of the nation or lead to a consequence which cannot
be revoked. One example of such a case would be the
evidence of a witness on whose false evidence a person may
0
be sent to the gallows.
27. In our view, the definition of "non-cognizable offence"
in Section 2(1) of the Code makes it clear that a non-cognizable
offence is an offence for which a police officer has no authority
to arrest without warrant. As we have also noticed E
hereinbefore, the expression "cognizable offence" in Section
2(c) of the Code means an offence for which a police officer
may, in accordance with the First Schedule or under any other
law for the time being in force, arrest without warrant. In other
words, on a construction of the definitions of the different F
expressions used in the Code and also in connected
enactments in respect of a non-cognizable offence, a police
officer, and, in the instant case an excise officer, will have no
·authority to make an arrest without obtaining a warrant for the
said purpose. The same provision is contained in Section 41 G'
of the Code which specifies when a police officer may arrest
without order from a Magistrate or without warrant.
28. Having considered the various provisions of the Central
Excise ,A.ct, 1944, and the Code of Criminal Procedure, which
H
262 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A have been made applicable to the 1944 Act, we are of the view
that the offences under the 1944 Act cannot be equated with
offences under the Indian Penal Code which have been made
non-cognizable and non-bailable. In fact, in the Code itself
exceptions have been carved out in respect of serious offences
B directed against the security of the country, which though non-
cognizable have been made non-bailable.
29. However, Sub-section (2) of Section 9A makes
provision for compounding of all offences under Chapter II.
C Significantly, Chapter II of the 1944 Act deals with levy and
collection of duty and offences under the said Act have been
specified in Section 9, which provides that whoever commits
any of the offences set out in Section 9, would be punishable
in the manner indicated under Sub-section (1) itself. What is
even more significant is that Section 20 of the 1944 Act, which
D has been extracted hereinabove, provides that the Officer in-
Charge of a police station to whom any person is forwarded
under Section 19, shall (emphasis supplied) either admit him
to bail to appear before the Magistrate having jurisdiction, or
on his failure to provide bail, forward him in custody to such
E Magistrate. The said provision clearly indicates that offences
under the Central Excise Act, as set out in Section 9 of the Act,
are bailable, since the Officer in-Charge of a police station has
been mandated to grant bail to the person arrested and brought
before him in terms of Section 19 of the Act. The decisions
F which have been cited by Mr. Parasaran deal mainly with
powers of arrest under the Customs Act. The only cited decision
which deals with the provisions of the Central Excise Act is the
decision of the Division Bench of the Punjab & Haryana High
Court in the case of Sunil Gupta Vs. Union of India. In the said
G case also, the emphasis is on search and arrest and the
learned Judges in paragraph 22 of the judgment specifically
indicated that the basic issue before the Bench was whether
arrest without warrant was barred under the provisions of the
1944 Act and the Courts had no occasion to look into the
H
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 263
[ALTAMAS KABIR, J.]
aspect as to whether the offences under the said Act were A
bailable or not.
30. In the circumstances, we are inclined to agree with Mr.
Rohatgi that in view of the provisions of Sections 9 and 9A read
with Section 20 of the 1944 Act, offences under the Central
B
Excise Act, 1944, besides being non-cognizable, are also
bailable, though not on the logic that all non-cognizable offences
are bailable, but in view of the aforesaid provisions of the 1944
Act, which indicate that offences under the said Act are bailable
in nature.
c
31. Consequently, this batch of Writ Petitions in regard to
the Central Excise Act, 1944, must succeed and are,
accordingly, allowed in terms of the determination hereinabove, ·
and we hold that the offences under the Central Excise Act,
1944, are bailable. o
32. The remaining writ petitions which deal with offences
under the Customs Act, 1962, namely, Writ Petition (Crl.) No.74
of 2010, Choith Nanikram Harchandani Vs: Union of India &
others, which has been heard as the lead case, and Writ
Petition (Crl.) Nos.36, 37, 51, 76 and 84 of 2011 and Crl. M.P. E
No.10673 of 2011 in W.P. (Crl.) No.76 of 2011, all deal with
offences under the Customs Act, though the issues are exactly
the same as those canvassed· in the cases relating to the
provisions of the Central Excise Act, 1944. Mr. Mukul Rohatgi,
learned Senior Advocate, appearing for the Writ Petitioners in F
these matters submitted that the provisions of the Customs Act,
1962, are in pari materia with the provisions of the Central
Excise Act, 1944, which are relevant to the facts of these cases.
The same submissions as were made by Mr. Rohtagi in relation
to Writ Petitions filed in respect.of offences ·under the Central G
Excise Act, 1944, were also advanced by him with regard to
offences under the Customs Act. In addition, certain decisions
were also referred to and relied upon by him in support of the
contention that offences under the Customs Act were also
intended to be bailable and they aimed at recovery of unpaid H
264 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A and/or avoided custom duties. Mr. Rohatgi submitted that, as
in the case of the provisions of the 1944 Act, the ultimate object
of the Customs Act is to recover revenue which the State was
being wrongly deprived of.
33. Mr. Rohatgi submitted that the provisions of Section
8 104(4) of the Customs Act are the same as the provisions of
Section 9A of the Central Excise Act, 1944. Section 104 of the
Customs Act empowers an officer of Customs to arrest a
person in case of offences alleged to have been committed
and punishable under Sections 132, 133., 135, 135A or Section
C 136 of the Act. In addition, Sub-section (4) of Section 104, which
is similar to Section 9A(i) of the Central Excise Act, 1944,
provides as follows :-
"104. Power to arrest. -
D
(1) to (3) ............................................................ .
(4) Notwithstanding anything contained in the Code of
Criminal Procedure, 1973, an offence under this Act shall
not be cognizable."
E
34. It was further pointed out-that as in the case of Section
20 of the Central Excise Act, 1944, under Sub-section (3) of
Section 104 of the Customs Act, an Officer of Customs has
been vested with the same power and is subject to the same
F provisions as an Officer in-Charge of a police station has under
the Code of Criminal Procedure, for the purpose of releasing
the arrested person on bail or otherwise. Mr. Rohatgi submitted
that as in the case of Section 20 of the 1944 Act, the provisions
of Sub-section (3) of Section 104 of the Customs Act, 1962,
G indicate that offences under the Customs Act would not only be
non-cognizable, but would also "be bailable.
35. Reverting to his submissions in relation to the Writ
PetitiOns under the Central Excise Act, 1944, Mr. Rol'atgi
submitted that if it is assumed that the bailability in respect of
H
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 265
[ALTAMAS KABIR, J.]
an offence was to be determined by the length of punishment A
in relation to Part 2 of the First Schedule to Cr.P.C., it would
be necessary that the duty leviable under the provisions of the
Customs Act would first have to be adjudicated upon and
determined. It was further submitted that there has to be a
process of adjudication to determine the amount of levy before B
any punitive action by way of arrest could be taken. Reference
was also made to the decision of this Court in Commissioner
of Customs Vs. Kanhaiya Exports (P) Ltd. (Civil Appeal No.81
of 2002), in which it had been held that a show cause notice is
mandatory before initiation of any action under the Customs c
Act. Mr. Rohatgi contended that arrest by prosecution could
follow only thereafter.
36. Appearing for the Union of India in the matters relating
to the Customs Act, 1962, the learned Additional Solicitor
General, Mr. P.P. Malhotra, urged that the submissions made D
by Mr. Rohatgi that since offences under the Customs Act are
non-cognizable, they are, therefore, bailable, was wholly
incorrect, as all non-cognizable offences are not bailable. The
learned ASG submitted that from the First Schedule to the
Cr.P.C., it would be clear that offences under Sections 194, E
195, 274, 466, 467, 476, 493 and 505 IPC, though non-
cognizable are yet non-bailable. It was submitted that Section
505 IPC is punishable with imprisonment upto 3 years or with
fine or both. The said offence being both non-cognizable and
non-bailable is in consonance with the last entry of Part 2 of F
Schedule I to the Code, dealing with offences under other laws.
The learned ASG submitted that the bailability or non-bailability
of an offence is not dependent upon the offence being
cognizable or non-cognizable. It was submitted that the bailable
offences are those which are made bailable in terms of Section G
2(a) Cr.P.C. which are defined as such under the First Schedule
itself. The learned ASG contended that whether an offence was
bailable or not, was to be determined with reference to the First
Schedule to the Code of Criminal Procedure, 1973.
H
266 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A 37. Referring to Part 2 of Schedule I to the Code, the
learned ASG submitted that in terms of the third entry if the
offence was punishable with imprisonment which was less than
three years or with fine only, in that event, the offence would be
bailable. If, however, the punishment was for three years and
B upwards, it would be non-bailable. It was further submitted that
the offer:ces under Section 135 of the Customs Act, 1962,
being punishable upto three years and seven years depending
on the facts, would be non-bailable.
C 38. In response to Mr. Rohatgi's submissions that since
offences under Section 9A of the Excise Act were non-
cognizable and the Excise Officer, therefore, had no power to
arrest such a person, the learned ASG submitted that such an
argument was fallacious since it was only for the purposes of
the Code of Criminal Procedure that the offences would be non-
D cognizable, but it did not mean that the concerned officer, who
had been authorized to investigate into the evasion of excise
duty, would have no power to investigate or arrest a person
involved in such offences. In support of his submissions, Mr.
Malhotra referred to the decision of this Court in Union of India
E Vs. Padam Narain Aggarwal [(2008) 13 SCC 305], wherein
this Court had considered powers of arrest under other
provisions such as the Customs Act. While deciding the matter,
this Court had held that the power to arrest a person by a
Customs Officer is statutory in character and cannot be
F interfered with. However, such power of arreSt can be exercised
only in such cases where the Customs Officer has reasons to
believe that a person has committed an offence punishable
under Sections 132, 133, 135, 135-A or 136 of the Customs
Act. It was further observed that the power of arrest was
G circumscribed by objective considerations and could not be
exercised on whims, caprice or fancies of the officer.
39. The learned ASG submitt£;d that in N.H. Dave,
Inspector of Customs Vs. Mohd. Akhtar Hussain Ibrahim Iqbal
H Kadar Amad Wagher (Bhatt) & Ors. [1984 (15) ELT 353
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 267
[ALTAMAS KABIR, J.]
(Guj.)], the Division Bench of the Gujarat High Court, inter alia, A
observed that since offences under Section 135 of the Customs
Act, 1962, are punishable with imprisonment exceeding three
years, the offences would be non-bailable. The learned ASG
submitted that the aforesaid view had been confirmed by this
Court in Deepak Mahajan's case (supra), wherein it was held B
that although the powers of the Customs Officer and
Enforcement Officer are not identical to those of Police Officers
in relation to investigation under Chapter XII of the Code, yet
Officers under the Foreign Exchange Regulation Act and the
, Customs Act are vested with powers which are similar to the C
powers of a police officer. The learned ASG submitted further
that such officers, who have the power to arrest, do not derive
their power from the Code, but under the special statutes, such
as the Central Excise Act, 1944, and the Customs Act, 1962.
40. The learned ASG submitted further that the powers of D
the Customs Officer to release an arrested person on bail is
limited and when an accused is to be produced before the
Court, it is the Court which would grant bail and not the Customs
Officer. He only ensures that the person is produced before the
Magistrate. According to the learned ASG, what is of E
paramount importance is the nature of the offence which would
determine whether a person is to be released by the Court on
bail. The learned ASG submitted that while in a cognizable
case a police officer could arrest without warrant and· in non-
cognizable cases he could not, the offences under the Excise F
Act, Customs Act or Foreign Exchange Regulation Act, 1973,
are offences under special Acts which deal in the evasion of
excise, custom and foreign exchange. According to the learned
ASG, in such matters, police officers have been restrained from
investigating into the offences and arresting without warrant, but G
· the concerned Customs, Excise, Foreign Exchange, Food
Authorities, were not police officers within the meaning of the
. Code, and, they could, accordingly arrest such persons for the
purposes of the investigation, their interrogation and for finding
out the.manner and extent of evasion of the excise duty, customs
H
268 SUPREME COURT REPORTS [2011] 14 (ADDL.) S.C.R.
A duty and foreign exchange etc. The learned ASG submitted that
cognizability of an offence did not mean that the person could
not be arrested by the officials of the Department for the
purpose of the investigation and interrogation. It was further
submitted that Section 104(4) of the Customs Act, 1962,
indicates that the offences thereunder would be non-cognizable
8
within the meaning of the Code and would prevent police
officers under the Code from exercising powers of arrest, but
such restriction do not apply to the special officers under various
special statutes.
C 41. Mr. Malhotra submitted that the offences which were
non-cognizable were not always bailable and special officers
under special Statutes would continue to have the power to
arrest offenders, even if under the Code police officers were
prevented from doing so.
D
42. The submissions advanced by Mr. Rohatgi and the
learned ASG, Mr. Malhotra, with regard to the question of
bailability of offences under the Customs Act, 1962, are
identical to those involving the provisions of the Central Excise
E Act, 1944. The provisions of the two above-mentioned
enactments on the issue whether offences under both the said
Acts are bailable, are not only similar, but the provisions of the
two enactments are also in pari materi'a in respect thereof.
•
43. The provisions of Section 104(3) of the Customs Act,
F 1962, and Section 13 of the Central Excise Act, 1944, vest
Customs Officers and Excise Officers with the same powers
as that of a Police Officer in charge of a Police Station, which
include the power to release on bail upon arrest in respect of
offences committed under the two enactments which are
G uniformly non-cognizable. Both Section 9A of the 1944 Act and
Section 104(4) of the Customs Act, 196i, provide that
notwithstanding anything in the Code of Criminal Procedure,
offences under both the Acts would be non-cognizable. The
arguments advanced on behalf of respective parties in Om
H Prakash & Anr. Vs. Union of India & Anr. (Writ Petition (Crl)
OM PRAKASH & ANR. v. UNION OF INDIA & ANR. 269
[ALTAMAS KABIR, J.]
No.66 of 2011) and other similar cases under the Central A
Excise Act, 1944, are equally applicable in the case of Choith
Nanikram Harchandani Vs. Union of India & Ors. (Writ Petition.
(Crl) No.74 of 2010 and the other connected Writ P.etitions in
respect of the Customs Act, 1962.
B·
44. Accordingly, on the same reasoning, the offences under
the Customs Act, 1962 must also be held to be bailable and
-the Writ Petitions must, therefore, succeed. The same are,
accordingly, allowed. Crl. M.P. No.10673 of 2011 in WP (Crl.)
No. 76 of 2011 is also disposed of accordingly. Consequently, C
as in the case of ofiences under the Central Excise Act, 1944,
it is held that offences under Section 135 of the Customs Act,
1962, are bailable and if the person arrested offers bail, he shall
be released on bail in accordance with the provisions of sub-
section (3) of Section 104 of the Customs Act, 1962, if not
wanted in connection with any other offence. D
N.J. Matters disposed of.
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