Non-cognizable customs investigations require Magistrate authorisation before a valid request for foreign judicial assistance can be made.

The Customs Act, 1962 does not provide a complete code for commencing investigation into customs offences, so Section 4(2) of the Criminal Procedure Code applies where the special law is silent. If the alleged offence is non-cognizable, Section 155(2) requires prior Magistrate authorisation before investigation can lawfully begin. A letter of rogatory under Section 166-A cannot stand on its own and must rest on a validly commenced investigation. On this reasoning, investigation started without the mandatory non-cognizable procedure was treated as unsustainable, and the consequential rogatory process was vulnerable to quashing.

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Issues: Whether the Directorate of Revenue Intelligence could validly commence investigation into the alleged customs offences and seek issuance of a letter of rogatory under Section 166-A of the Code of Criminal Procedure, 1973 without first complying with the procedure applicable to non-cognizable offences under Section 155(2) of the Code.

Analysis: The Customs Act, 1962 is a special enactment, but it does not prescribe a complete procedural code for commencing investigation when the offence is classified as cognizable or non-cognizable. The statutory scheme shows that the Customs Officer has powers of search, seizure, arrest, examination and summons, yet the Act does not lay down the manner in which information of an offence is to be taken up for investigation in the manner contemplated by Chapter XII of the Code of Criminal Procedure, 1973. In the absence of a contrary special procedure, Section 4(2) of the Code applies, and the investigation must proceed in accordance with the Code to the extent not inconsistent with the Customs Act. Where the alleged offence is non-cognizable, Section 155(2) requires prior Magistrate authorization before investigation can lawfully commence. Section 166-A, which enables a letter of request in the course of investigation, does not operate as an independent island divorced from the valid commencement of investigation under Chapter XII. Since the investigation in the present case had been set in motion without following the mandatory route applicable to a non-cognizable offence, the subsequent letter of rogatory could not be sustained.

Conclusion: The challenge succeeded. The action taken on the basis of the letter of rogatory was held unsustainable and liable to be quashed.

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