1983 (11) TMI 290 - HC - Customs

Custody and arrest are distinct legal concepts requiring proper procedures under Section 46 CrPC and customs investigations

ROSHAN BEEVI AND OTHERS Versus JOINT SECRETARY TO THE GOVERNMENT OF TAMIL NADU, PUBLIC DEPARTMENT (LAW AND ORDER) AND OTHERS

The Madras HC clarified that 'custody' and 'arrest' are not synonymous terms, though every arrest involves custody. The court held that arrest requires ... Mode of arrest - When is a person said to be under arrest - Legality and validity of the order of detention passed under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (the COFEPOSA Act) - Are the terms 'custody' and 'arrest' synonymous - principle of natural justice - Violation of Article 21 and 22 of the Constitution of India. HELD THAT:- From the various definitions, it is clear that the word `arrest’ when used in its ordinary and natural sense, 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 been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody or another person under authority empowered by law, for the 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 a seizure or detention of the person in the manner known to law, which is so understood by the person arrested. In this connection, a debatable question that arises for our consideration is whether the mere taking into custody of a person by an authority empowered to arrest would amount to `arrest’ of that person and whether the terms `arrest’ and `custody’ are synonymous. From the discussions made, we hold that `custody’ and `arrest’ are not synonymous terms. It is true that in every arrest there is custody, but not vice versa. A custody may amount to an arrest in certain cases, but not in all cases. In our view, the interpretation that the two terms `custody’ and `arrest’ are synonymous is an ultra legalist interpretation which, if accepted and adopted, would lead to starting anomaly resulting in serious consequences. Following the well-recognised principle of the interpretation of the statutes, laid down in the above decisions when Section 46 Cr. P.C. is examined, there cannot be a second opinion that the method and the execution of arrest of a person intended to be arrested should be performed only in the manner prescribed in the statute and the other methods of performance are forbidden; otherwise, the whole provisions of Section 46 Crl. P.C. would be rendered nugatory and functionless. If the method of arrest is not performed in the manner known to law and as prescribed under Section 46 Crl. P.C. but by the mere utterance of words, making of gestures, flickering of yes, nodding of the head etc., as ruled in Kaiser Otmar’s case, [1981 (6) TMI 131 - HIGH COURT OF MADRAS], we are of the firm view that the modes of arrest prescribed in that ruling are not only contrary to Section 46 Crl. P.C., but will also render the section non-existent or otiose, and such a procedure cannot be adopted to effect a valid arrest. It is now well-settled that failure to comply with the requisite procedure would be fatal to the legality of the execution of any Act or of the passing of any order by any one authorised by law. The essence of this principle is reflected in Maneka Gandhi’s case,[1978 (1) TMI 161 - SUPREME COURT], wherein it has been held that the procedural safeguards are the essence of liberty. For invoking Article 22(2), as pointed out by the learned Advocate-General, two requirements must be satisfied—(1) the person should have been arrested; and (2) he should have been detained in custody. At the state of enquiry, or investigation or interrogation held under Section 107 or Section 108 of the Customs Act, the person required or summoned for such enquiry or examination is not arrested, nor has he become an accused. If, in a given case, the Customs Official detains any person required or summoned under the provisions of the Customs Act for a prolonged period, even exceeding 24 hours, or keeps him in closed doors as a captive prisoner surrounded by officials or locks him in a room or confines him to an office premises, he does so at his peril, because Sections 107 and 108 of the Customs Act do not authorise the officer belonging to the Customs department to detain a person for a prolonged custody and deprive him of the elementary facilities and privileges to which he is entitled. In such a situation, the officer must be held to have over-stepped his limits, and any confessional statement obtained from such a person by keeping him in a prolonged custody has to be regarded with grave suspicion, because there is always room for criticism that such a confession might have been obtained from extorted mal-treatment or induced by improper means. At this juncture, we feel that it will not be out of place to mention here that the individuals and the organised gangs indulging in smuggling activities by adopting devious ways and means, dangerously do ruin the economy of our country. Needless to say, this kind of offence, which assumes dangerous magnitude, gravity and seriousness, are perpetrated secretly, dexterously and designedly by the anti-social elements, who are incorrigible and hardened criminals, and as such it would be difficult, if not impossible, to get direct evidence or proof in all cases of this nature. There cannot be a second opinion that this kind of offences should be put down sternly. But this does not mean that the Customs officials can deviate from the legal path and overstep the legal restraints in their effort to curb the activities of the individuals believed to be engaged in committing criminal offences, and act in an unbridled manner according to their whims and fancies on an assumption that their powers are unlimited and they are free to adopt any arbitrary, fantastic and oppressive procedures which will result in the abuse of their powers. Sometimes, the courts are pained to note that even the guardians of law themselves act in violent disobedience and with supine indifference of the rule of law, and contemptuously trent even the innocent by dubbing them as wrong doers. It is true that the procedural law protects the legal rights of the suspected offender by placing numerous restraints on the power of the police or the Customs officials, as the case may be, but it is felt by many that the safeguards are too often proved to be a myth rather than a reality. At the same time, one should not lose sight of the fact that as often as not, even a maker of a confession statement incriminating himself to an authority in law, when it is given in evidence in a proceeding against the maker, turns round and complains that such a confession statement was extracted by threats or was made up or was framed, and seeks to discredit the guardian of law. On many occasions, when law-breakers are arrested, they make wild allegations, and shout from roof top `police brutality’ or `customs brutality’ which are nothing but cat-calls. Therefore, the Customs officials when acting under the provisions of the Customs Act should see that the procedural safeguards which are the indispensable essence of the liberty of a citizen are not impaired in any manner. In the result, the five questions formulated in the preface of this judgment for consideration, of this reference are all answered as indicated above, for the reasons assigned. Thus, all these writ petitions are relegated back to the Division Bench exercising writ jurisdiction to consider each of the writ petitions on its merits and dispose of the same in the light of this judgment. The core legal questions considered by the Court in this Full Bench reference are:1. When is a person said to be under arrestRs.2. Are the terms 'custody' and 'arrest' synonymousRs.3. Are Customs officials vested with powers under the Customs Act, 1962, to detain any person for any period and at any place for inquiry, interrogation or investigationRs.4. Will detention by Customs officers for inquiry, interrogation or investigation amount to an 'arrest'Rs.5. Is detention beyond 24 hours by Customs officers without producing the person before a Magistrate violative of Article 22 of the Constitution of IndiaRs.Issue 1: When is a person said to be under arrestRs.The Court examined the term 'arrest' extensively, noting that it is not defined in procedural or substantive statutes but is governed by Section 46 of the Criminal Procedure Code (Cr.P.C.). The word 'arrest' originates from the French 'arrester' meaning 'to stop or stay' and generally signifies restraint or deprivation of personal liberty. The Court reviewed numerous dictionary definitions and judicial pronouncements, including English and Indian authorities, which consistently define arrest as the act of taking a person into custody by legal authority, involving either actual physical seizure or submission to custody by word or action.Key precedents considered include:State of Punjab v. Ajaib Singh (1953) - where the Court rejected an overly broad definition of arrest that would render many lawful detentions unconstitutional.R. v. Balfaray; R. v. Sadler (1970) and Spicer v. Holt (1976) - emphasizing that arrest depends on whether a person is deprived of liberty and not on the legality of the arrest.Niranjan Singh v. Prabhakar (1980) - clarifying that 'custody' in bail proceedings involves physical control and submission to court jurisdiction, not mere presence or informal restraint.The Court concluded that arrest requires an intent to detain under lawful authority, accompanied by actual restraint or submission by the person, and mere words or gestures without submission do not constitute arrest.Issue 2: Are 'custody' and 'arrest' synonymousRs.The Court analyzed the term 'custody' as used in various statutes and dictionaries, noting that it generally implies safe-keeping, control, or confinement but is context-dependent. The Court distinguished custody from arrest, holding that while every arrest involves custody, not every custody amounts to arrest.Supporting authorities include:Harbans Singh v. State (1970) - held that arrest is a mode of taking police custody, but custody can exist without formal arrest.State of Uttar Pradesh v. Deoman (1960) - submission to custody by word or action suffices for arrest, but custody itself is broader.Ramachandran In re (1960) - temporary police custody during judicial custody does not convert judicial custody into police custody.The Court rejected the argument that mere taking into custody by Customs officers for enquiry or interrogation amounts to arrest, emphasizing that Customs officers are not police and the enquiry under Sections 107 and 108 of the Customs Act is not an investigation into a criminal offence in the police sense.Issue 3: Powers of Customs officials to detain persons for inquiry, interrogation or investigationThe Court examined Sections 107, 108, and 104 of the Customs Act, 1962, and related case law. It was held that Customs officers have statutory powers to require or summon any person for enquiry or examination related to smuggling but are not empowered to detain persons arbitrarily or for prolonged periods. The enquiry under these sections is administrative and preventive rather than criminal investigation.Key findings include:Customs officers are not police officers and do not exercise police powers.Persons summoned under Sections 107 and 108 are not accused at that stage and thus not entitled to protections applicable to accused persons under the Criminal Procedure Code or the Constitution.Statements made to Customs officers are admissible and not barred by Sections 24 or 25 of the Evidence Act, as Customs officers are not police.Prolonged detention beyond the scope of enquiry powers is unauthorized and may render any confession obtained suspect.Issue 4: Does detention by Customs officers for inquiry or interrogation amount to arrestRs.The Court rejected the contention that mere detention or taking a person for enquiry or interrogation by Customs officers amounts to arrest. It emphasized that arrest requires compliance with the mode prescribed by Section 46 Cr.P.C., which involves actual touching or confinement or submission by the person. Mere physical restraint or surveillance without formal arrest procedures does not constitute arrest.The Court criticized the earlier Division Bench ruling in Kaisar Otmar's case that held arrest could occur by mere gestures or words without formal touching or confinement, holding that such interpretation conflicts with Section 46 Cr.P.C. and established principles of statutory interpretation. It would lead to untenable consequences if mere taking into custody for enquiry were equated with arrest.Issue 5: Is detention beyond 24 hours without Magistrate production violative of Article 22(2)Rs.The Court held that Article 22(2) of the Constitution applies only when a person is arrested and detained in custody. Since persons summoned under Sections 107 or 108 are not arrested, the requirement to produce them before a Magistrate within 24 hours does not arise. However, if a person is formally arrested under Section 104(1) of the Customs Act, then Article 22(2) applies, and production before a Magistrate within 24 hours is mandatory.The Court further observed that prolonged detention by Customs officers beyond the scope of statutory powers, even if not amounting to arrest, is impermissible and may taint any confession obtained. The Court cautioned Customs officials against arbitrary or oppressive practices and emphasized adherence to legal safeguards to protect personal liberty.Additional Observations and ReasoningThe Court referred to constitutional principles protecting personal liberty under Articles 21 and 22, and relevant Supreme Court decisions including Maneka Gandhi v. Union of India, Francis Coralie v. Union Territory of Delhi, Malak Singh v. State of Punjab, and Nandini Satpathy v. P.L. Dani. It acknowledged that while surveillance and inquiry are permissible within statutory limits, any intrusive or prolonged restriction on liberty must comply with constitutional safeguards.It rejected arguments that Sections 107 and 108 of the Customs Act violate Article 21 for vagueness or confer uncontrolled discretion, holding that the reference was limited to the mode of arrest and related questions. The Court declined to consider issues regarding legal assistance during enquiry as beyond the scope of the reference.The Court underscored the principle that statutory powers must be exercised strictly according to the prescribed procedure, citing authoritative rulings that 'if a thing is to be done in a particular manner it must be done in that manner or not at all.'Conclusions and Significant Holdings1. The term 'arrest' means the actual seizure or restraint of a person's liberty by legal authority, either by physical touching or confinement or by submission to custody by word or action. Mere words, gestures, or surveillance without submission do not constitute arrest.2. 'Custody' and 'arrest' are not synonymous. While every arrest involves custody, custody may exist without arrest.3. Customs officers have statutory powers to summon or require persons for enquiry or examination under Sections 107 and 108 of the Customs Act, but these powers do not authorize detention amounting to arrest or prolonged custody beyond what is necessary for enquiry.4. Detention by Customs officers for enquiry or interrogation does not amount to arrest unless the formal mode of arrest prescribed under Section 46 Cr.P.C. is followed.5. Article 22(2) of the Constitution, requiring production before a Magistrate within 24 hours, applies only to persons formally arrested and detained in custody. Persons summoned for enquiry under the Customs Act are not arrested and thus this safeguard does not apply at that stage.6. Any prolonged or unauthorized detention by Customs officers beyond the scope of statutory powers is unlawful and may taint any confession obtained during such detention.7. The earlier Division Bench ruling in Kaisar Otmar's case, which held that arrest could be effected by mere words or gestures without physical touching or submission, is overruled as contrary to Section 46 Cr.P.C. and established principles of law.8. Statutory powers must be exercised strictly in the manner prescribed by law; deviation from prescribed modes renders the act invalid.9. The writ petitions challenging the detention orders are to be reconsidered by the Division Bench in light of these principles.