Customs/DRI Officers Empowered To Arrest Even On Suspicion Of Smuggling, Not Obliged To Cr. P. C. Norms For Making Arrest: Gujarat HC [Read Judgment]
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The Gujarat High Court has ruled that any person can be arrested for any offence under the Customs Act, 1962, by the Customs Officer, if such officer has reasons to believe that such person has committed an offence punishable under Section 132 (False declaration, false documents, etc) or Section 133 (Obstruction of officer of customs) or Section 135 (Evasion of duty or prohibitions.) or...
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The Gujarat High Court has ruled that any person can be arrested for any offence under the Customs Act, 1962, by the Customs Officer, if such officer has reasons to believe that such person has committed an offence punishable under Section 132 (False declaration, false documents, etc) or Section 133 (Obstruction of officer of customs) or Section 135 (Evasion of duty or prohibitions.) or Section 135A (making preparation to export any goods in contravention of the provisions of this Act) or Section 136 (Offences by officers of customs.) of the Act, and in such circumstances, the Customs Officer is not obliged to follow the dictum of the Supreme Court as laid in the case of Lalitha Kumari as regards preliminary enquiry.
In other words, a person can be arrested in connection with any cognizable offence alleged to have been committed under the Customs Act, 1962 without following or complying with the provisions of Sections 154 to 157 of the Cr. P. C. (INFORMATION TO THE POLICE AND THEIR POWERS TO INVESTIGATE)
The Court reiterated that a Customs officer conducting an inquiry under Section 107 (Power to examine persons.) or Section 108 (Power to summon persons to give evidence and produce documents) of the Customs Act is not a police officer and the person against whom such inquiry is made is not an accused. The power to arrest a person by a Customs officer is statutory in character and ordinarily should not be interfered with by the court unless compelling circumstances are made out. The statements recorded under Section 108 of the Customs Act are distinct and different from the statements recorded by the police officers under Section 161 of the Code of Criminal Procedure during the course of investigation under the Code.
The Court opined that the powers that are conferred upon Custom Officers do not make them police officers or bring them to the level of police officers and are merely intended to avoid certain inconveniences in the discharge of their duties. When we say inconveniences; inconveniences both to the citizen and to the department. The powers of search, seizure and arrest are contained in Chapter 13 of the Act of 1962. The provision does not give the Customs officers the powers of the officer-in-charge of a police station in respect of the investigation and report, but only to grant bail. Instead of defining power to grant bail in detail saying as to what they should do or should not do, the short and expedient way of referring to the powers of another officer when placed in somewhat similar circumstances has been adopted. "By its language the sub-section does not equate the officers of the Customs with an officer-in-charge of a police station, nor does it make him one by implication. It only, therefore, means that he has got powers as defined in the Code of Criminal Procedure for the purpose of releasing such person on bail or otherwise", said the Court.
The Court further explained that as Section 162, Cr. P. C., by its terms requires that the statement must be made to a Police officer in an investigation under the said Chapter. Section 4(2) of the Code which provides that offences under other laws shall be investigated under the Code, is subject to the qualification '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 offence'. "In our view, the Customs Act, 1962, is such an enactment which has provided its own procedure for investigating into the offences committed under it and the provisions of Chapter 12 of the Code, therefore, would not apply to such investigations", said the court.
The bench of Chief Justice Vikram Nath and Justice J B Pardiwala were hearing a petition filed by a businessman, who was repeatedly summoned by a Vapi-based DRI official in connection with an inquiry of duty evasion. As he was repeatedly summoned for the last two years, he approached the HC and sought protection on apprehension of arrest.
"When any person is arrested by an officer of the Customs, in exercise of his powers under Section 104 of the Customs Act, 1962 (on reason to believe that any person in India or within the Indian customs waters has committed an offence punishable under section 132 or section 133 or section 135 or section 135A or section 136), the officer effecting the arrest is not obliged in law to comply with the provisions of Sections 154 to 157 of the Code of Criminal Procedure, 1973. The officer of the Customs, after arresting such person, has to inform that person of the grounds for such arrest, and the person arrested will have to be taken to a Magistrate without unnecessary delay. However, the provisions of Sections 154 to 157 of the Code will have no application at that point of time", ruled the division bench.
The bench said that Customs/DRI Officers are not the Police Officers and, therefore, are not obliged in law to register FIR against the person arrested in respect of an offence under Sections 133 to 135 of the Customs Act, 1962.
Holding that a DRI Officer is a 'proper officer' for the purposes of the Customs Act, 1962, the bench also ruled that the Customs/DRI Officers are not the Police Officers, the statements made to them are not inadmissible under Section 25 of the Evidence Act.
"A Police Officer, making an investigation of an offence, representing the State, files a report under Section 173 of the Code, becomes the complainant, whereas, the prosecuting agency under the special Acts files a complaint as a complainant, i.e. under Section 137 of the Customs Act", the bench further explained.
The bench stated that the power to arrest a person by a Customs Officer is statutory in character and should not be interfered with.
"Section 108 of the Act does not contemplate any Magisterial intervention. The statements recorded under Section 108 of the Customs Act are distinct and different from the statements recorded by the Police Officers during the course of investigation under the Code", said the bench.
Arrest possible merely on suspicion of smuggling, but person not deemed to be accused immediately on arrest
The judgment further declares that the expression 'any person' in Section 104 of the Customs Act includes a person who is suspected or believed to be concerned in the smuggling of goods. So an officer of customs or the Directorate of Revenue Intelligence can arrest anybody on suspicion of smuggling.
However, it clarifies that a person arrested by a Customs Officer because he is found to be in possession of smuggled goods or on suspicion that he is concerned in smuggling goods is not, when called upon by the Customs Officer to make a statement or to produce a document or thing, a person is accused of an offence within the meaning of Article 20(3) of the Constitution of India.
"Where a Customs Officer arrests a person and informs that person of the grounds of his arrest, for the purposes of holding an inquiry into the infringement of the provisions of the Customs Act which he has reason to believe has taken place, there is no formal accusation of an offence", reads the judgment. The bench clarifies that the accusation could be said to have been made when a complaint is lodged by an officer competent in that behalf before the Magistrate.
"The arrest and detention are only for the purpose of holding effective inquiry under Sections 107 and 108 of the Customs Act with a view to adjudging confiscation of dutiable or prohibited goods and imposing penalty", it said.
"Yet there should not be any unnecessary harassment to a person summoned for the purpose of interrogation under Section 108 of the Customs Act, 1962", said the bench.
The bench noted that the main thrust of the 2011 decision of the Supreme Court in the case of Om Prakash to ascertain whether the offence was bailable or non-bailable, was on the point that the offence being non-cognizable, it had to be bailable. "In other words, Om Prakash deals with the question, 'whether the offences under the Customs Act, 1962, and the Central
Excise Act, 1944, are bailable or not ?'", said the bench, noting that tt the time when the decision in Om Prakash was rendered, an offence under the Customs Act was not cognisable. So also, the categorisation of cases which are non-bailable and cases which are bailable was not there before the amendment of Section 104 in 2012 and 2013 respectively.
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