TaxTMI 
TaxTMI 
1983 (11) TMI 290
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....lasubrahmanyan J. and M.N. Moorthy J. in Kaisar Otmar v. State of Tamil Nadu, 1981 L.W. Crl. 158, is that the detenu should be deemed to have been arrested from the moment they were taken into custody by the Customs officials, even if it be under the guise of any inquiry or interrogation, and that their subsequent custody with the Customs department without being produced before the Magistrate within 24 hours as envisaged in Article 22(2) of the Constitution of India, would amount to an illegal detention and any statement or statements recorded from those persons by the Customs Omciats during this prolonged period of custody should be held to have been made by the detenues not on their own volition or free will and hence such statements cannot be made use of by the detaining authorities for drawing the requisite subjective satisfaction for passing the orders of detention. 3. As two of us constituting a Division Bench viewed that the interpretation of the word 'arrest' and the observation regarding the formal mode of arrest, given by the earlier Division Bench of this court in Kaisar Otmar's case, are not in consonance with Section 46 Crl. P.C. and the view taken by a Full Bench ....
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....an illegal detention violative of Article 22(2) of the Constitution, was not correct. In other words, according to the respondents, the detenu could not be said to have been 'arrested' within the meaning of the said term from the moment when he was taken into custody for interrogation. The Bench rejecting the contention of the respondents and accepting that of the petitioner, held that the detenu in that case was arrested from the time when he was taken into custody by the customs officials, i.e., on the evening of 15-1-1981, and kept for a prolonged period in violation of Article 22(2) of the Constitution. 6. In order to answer the reference, the following questions are framed for consideration:- 1. When is a person said to be under arrest? 2. Are the terms 'custody' and 'arrest' synonymous? 3. Are the Customs officials vested with powers under the Customs Act, 1962, to detain any person for any period and at any place for the purpose of an inquiry, interrogation or investigation? 4. Will the detention of a person by the Customs officers for the purpose of enquiry, interrogation or investigation amount to an 'arrest' of the said person? ....
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....Code, and the Customs Act and also the various text books written by renowned authors, in which terms 'arrest' and 'custody' appear and also referred to various dictionaries with reference to the meaning of those two terms, and urged that the words 'arrest' and custody are synonymous and therefore, once a person is taken for inquiry either under Section 107 or under Section 108 of the Customs Act, such a taking would amount to an arrest and the Customs officials are not at all justified in keeping and detaining a person as taken into custody for ever the statutory period authorised under law, under the guise of inquiry or interrogation. According to him, the interpretation of the term 'arrest' and the observation of the term 'arrest' in Kaiser Otmar's case, represent the correct position of law and as such there is no warrant for reconsideration of the principles laid down therein. 10. The learned Advocate General, appearing at the instance of this Court, posed three points as arising for discussion and answered the same stating (1) that the mere questioning of a person by a Customs officer either under Section 107 or under Section 108 of the Customs Act resulting in a voluntary....
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....ection 107 or under Section 108 of the Customs Act is not an accused of an offence and hence at the stage of such an enquiry, when there is no formal accusation, the mere physical restraint of that person is not an arrest and in such a case, there is no testimonial compulsion. He would further state that as the person summoned for enquiry does not have the character of an accused, the protection given under Articles 203(3), 21 and 22(2) of the Constitution cannot be availed of. 13. In support of their respective submissions, the learned Counsel appearing for the various petitioners and the respondents and the learned Advocate General took us very meticulously through a catena of decisions and also drew our attention to various provisions of the Customs Act, the Code of Criminal Procedure and other allied enactments and certain renowned text books. 14. Meaning of the term 'arrest': The term 'arrest' is not defined either in the procedural Acts or in the various substantive Acts, though Section 46 Crl. P.C. lays down the mode of arrest to be effected. 15. The word 'arrest' is derived from the French 'arrester' meaning 'to stop or stay' and signifies a restraint of the person....
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....pose of holding or detaining him the answer a criminal charge or civil demand.......Arrest involves the authority to arrest, the assertion of that authority with the intent to effect an arrest, and the restraint of the person to be arrested......All that is required for an 'arrest' is some act by officer indicating his intention to detain or take person into custody and thereby subject that person to the actual control and will of the officer, as formal declaration of arrest is required." (h) A 'Dictionary of law' by L.B. Curzon (1979) gives the meaning of the word 'arrest' at page 22, as follows - "To restrain and detain a person by lawful authority......." (i) Mitra's Legal and Commercial Dictionary, 3rd Edn. (1979) gives the following definition of the word at page 77 - 'Arrest' means the restraining of the liberty of a man's person in order to compel obedience to the order of a court of justice, or to present the commission of crime, or to ensure that a person charged or suspected of a crime may be forthcoming to answer it." Arrest consists of the actual seizure or touching of a person's body with a view to his detention. The mere pr....
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....e word 'arrest' when used in criminal charges as follows - "In criminal procedure, an arrest' is the taking of a person into custody in order that he may be held to answer for or be prevented from committing a criminal offence.......consists in the taking into custody of another person under real or assumed authority for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence......The terms 'arrest' and 'apprehension' have been by some courts used interchangeably as meaning the same thing when employed in connection with the taking of a person into custody. The effect of facts as constituting an arrest is a question of law. Whether the particular circumstances have been established which constitutes an arrest is ordinarily, however, a question of fact." According to this text book 'to constitute an arrest' there must be an intent to arrest, under a real or pretended authority, accompanied by a seizure or detention of the person, which is so understood by the person arrested." (o) In 'A Handbook in Criminal Procedure and the Administration of Justice' by Allen P. Bristow and John B. Williams....
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....ntial 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. 17. (a) The term 'custody' appears in a number of enactments. However, we are not giving an exhaustive list of the provisions of enactments containing the said expression 'custody'. In Sections. 439 and 442 (heading alone of the section) and Section 451 of the Crl. P.C., Section 223, I.P.C., Sections 26 and 27 of the Indian Evidence Act, Section 45 of the Customs Act, 1962, and Sections 19(c), 25(b) and (c), 29(2) and (3) and 40 of the Tamil Nadu Children Act etc., the said term is used However, it may be noted that the said word is not defined in any of these enactments. (b) The meaning of the term 'custody' is given in the Shorter Oxford English dictionary, as follows - ....
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....aib Singh and Another, A.I.R. 1953 S.C. 10 = 1953 S.C.R. 254. In that case, the point for consideration was whether the taking into custody of an abducted person by a police officer under Section 4 of the Abducted Persons (Recovery and Restoration) Act, 1949 (65 of 1949), and the delivery of such person by him into the custody of the officer in charge of the nearest camp can be regarded as arrest and detention within the meaning of Article 22(1) and (2). It was contended in that case, after referring to the various definitions of the word 'arrest' given in several well-known law dictionaries and urged in the light of such definitions, that any physical restraint imposed upon a person must result in the loss of his personal liberty and must accordingly amount to his arrest and that it is wholly immaterial why or with what purpose such arrest is made and the mere imposition of physical restraint, irrespective of its reason, is arrest and as such attracts the application of the constitutional safeguards guaranteed under Article 22(1) and (2). While meeting that argument, the court observed : "That the result of placing such wide definition on the term 'arrest' occurring in Ar....
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.... because he is held by the investigating agency or other police or allied authority or is under the control of the court, having been remanded by judicial order or having offered himself to the court's jurisdiction and submitted to its order by physical presence. No lexical dexerity or precedential profession is needed to come to the realistic conclusion that he who is under the control of the court or in the physical hold of an officer with coercive power is in custody for the purpose of Section 439. This word is of elastic semantics and its core meaning is that the law has taken control of the person. Equivocatory quibblings and the hide-and-seek niceties sometimes heard in court that the police have taken a man into informal custody but not arrested him, have detained him for interrogation but not taken him into formal custody and the other like terminological dubictics are unfair evasions of the straightforwardness of the law. We need not dilate on this shady facet here because we are satisfied that the accused did physically submit before the Sessions Judge and the jurisdiction to grant bail thus arose. Custody in the context of Section 439 (we are not, be it noted, dealing wi....
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....light of the interpretation by the Supreme Court of the term 'in custody' occurring in Section 439 of the Code in Niranjan's case, cannot be accepted. In fact, their Lordships themselves have pointed out in that judgment that there is a shady fact in the expression of the term 'in custody'. Hence, this decision cannot be availed of by the learned Counsel. In support of his contention that the mere taking of a person into custody would amount to arrest. 21. Now, we shall pass on to discuss about the interpretation of the same term 'in custody' occurring in Sections 26 and 27 of the Evidence Act. In Laymoung v. Emperor, AIR 1924 Rang. 173, it was said by the learned Judges in that case that the correct interpretation of the term 'police custody' would be that 'as son as an accused or suspected person comes into the hands of a police officer, is, in the absence of any clear and unmistakable evidence to the contrary, no longer at liberty and is therefore in custody within the meaning of Sections 26 and 27 of the Evidence Act'. See also Paramahamsa v. State of Orissa, AIR 1964 Orissa 144 F.B. It has been held in Gurdial Singh v. Empiror, AIR 1932 Lah. 609 and in Re : Edukondalu, AIR ....
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....judicial remand, he was interviewed by the Inspector of Police to whim he gave some information. Subsequently, the accused, on the order of the Magistrate, came to police custody. Thereafter, the Inspector discovered a relevant fact in pursuance of the information given by the accused while he was in jail custody. The question arose whether that part of the information relating to the discovery of the relevant fact, while the accused was in jail custody could be proved within the scope of Section 27. The Division Bench, observing that there should not be a rigid interpretation of Section 27, held thus- "Though formally the accused was in judicial custody under an order of remand made by the Magistrate, he was temporarily in the custody of the police officer when he was interrogated and must be held to have been in such custody for the purpose of the applicability of Section 27." A close study of the above decision shows that the Bench had taken the view that though the accused was in jail, he must be deemed to have been in temporary custody of the police at the time of the interrogation, which position, in our view cannot be recognised in law. With great respect to the ....
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....'in the custody of a police officer' so that there may not arise any legal conundrum even in a case where a statement is made by a person accused of any offence to an authority empowered to arrest him, though not actually arrested but has come only in his custody. 23. It was contended on behalf of the writ petitioners that applying the interpretation of the expression 'in custody' appearing in Sections 26 and 27 of the Evidence Act, it should be held that a person who is taken by a Customs Officer either for the purpose of enquiry or interrogation or investigation, should be held to have come into the custody and detention of the Customs Officer and he should be deemed to have been arrested from the moment he was so taken into custody. We cannot agree with this submission for a number of reasons. Firstly, the specified Customs Officer is empowered to require or summon any person for the purpose of an enquiry or examination in connection with the smuggling of any goods, either under Section 107 or under Section 108 of the Customs Act, as the case may be. Secondly, it is well settled that Customs Officers whose powers are for the purpose of checking the smuggling of goods and the ....
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....nder the Indian Forest Act, is not an investigation as defined under Section 2(h) Cr. P.C. It is worthwhile to refer at this juncture to the judgment of a Full Bench of this Court in Collector of Customs v. Kotmal, AIR 1957 Mad. 263 F.B., wherein it has been pointed out that neither the enquiry under Section 107 nor the enquiry under Section 108 of the Customs Act can in any way, in substance or in law, be considered to be the same as an investigation into the criminal offence by an officer in charge of a police station under Chapter XIV of the old Code, which is the primary test for the application f Section 25 of the Evidence Act. Seventhly, the Supreme Court in Veera Ibrahim v. State of Maharashtra, AIR 1976 S.C. 1167, agreeing with the principle laid down in Mehta v. State of West Bengal, AIR 1970 S.C. 940 held that when the statement of a person is recorded by the Customs Officer under Section 108, that person is not a person 'accused of any offence' under the Customs Act and that an accusation which would stamp him with the character of such a person was levelled only when the complaint was filed against him by the Assistant Collector of Customs complaining of the commission ....
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....officials to summoning the person for enquiry or interrogation cannot be accepted. In support of this contention, the learned Advocate General cited the decision of the Supreme Court in Balakrishna v. State of West Bengal, AIR 1974 S.C. 120-1974-2-SCR 107 wherein Krishna Iyer J. has made the following observation :- "This provision is wide in it terms and is clearly designed to facilitate the investigatory process by examination without restriction on person, place or time. Lest it should be misused the law is choosy and requires the empowerment of Customs officers by a general or special power of the Collector to exercise these larger powers. Does Section 107 enable the interrogation of even the potential delinquent or must it be confined only to witness who throw light on the delinquent's contravention of the law. 'Any person' in the section certainly covers every person including a suspect and potential accused. These words of the statute have to be interpreted in the light of the policy and purpose of the law. The object of Section 107, located in the neighbourhood of Section 108 indicates that while the normal process of enquiry is facilitated by Section 108 investiga....
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....a citizen would certainly be entitled to the courts' protection and that should not be any illegal interference in the guise of surveillance and therefore the surveillance as to be unobstrusive and within bounds. Further, as held by the Supreme Court in Raja Narainlal Bansilal v. Manek Phiroz Mistry AIR 1961 S.C. 21, reiterated in a number of later decisions inclusive of Nandini Satpathy v. P.L. Dani AIR 1978 S.C. 1025 - "One of the essential conditions for invoking the constitutional guarantee enshrined in Article 20(3) is that a formal accusation relating to the commission of an offence which would normally lead to his prosecution must have been levelled against the party who is being compelled to give evidence against him." See also State of Bombay v. Kathi Kalu AIR 1961 S.C. 1808, Popular Bank v. Madhava Naik AIR 1965 S.C. 654, Collector of Customs v. Kotmal AIR 1957 Mad. 263, (F.B) Yousuf Ali Ismail Nagri v. State of Maharashtra, AIR 1968 S.C. 147 and Veera Ibrahim v. State of Maharashtra, AIR 1978 S.C. 1167. In this connection, Mr. Kareem would state that the above conditions for invoking Article 20(3) is not in dispute. 25. In Urban Singh's case, AIR 1970 Bom.....
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....ir will and surveillance. He also, placing reliance on the observations of the Supreme Court in Nandini Satpathy's case AIR 1978 S.C. 1025, made a scathing attack about the in communicado interrogations and submitted that such interrogatories are not only derogatory and degrading, but also violative of Article 21 of the Constitution. This kind of complaint can be examined and decided only with reference to the facts of each case and one cannot make any general proposition of law about the conduct of the Customs officers in general in the matter of enquiry, interrogation or investigation, based on any assumption or conjecture. 27. In an enquiry under Section 107 or Section 108 of the Customs Act, not only the person who subsequently becomes the accused with reference to the matter under enquiry, but also persons who are conversant or suspected to be conversant with the smuggling of any goods, are examined. This is the reason why in the said sections the words 'any person' are used so as to denote all the persons inclusive of the persons who subsequently become accused. At that stage, there is no question of arrest. Arrest comes into the picture only when an officer of the Customs....
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....icer authorised by law to do so, does so. 29. For all the discussions made above, 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. 30. Mode of arrest : This is a crucial question in those cases which had led to the constitution of this Full Bench. Section 45(1) Crl. P.C. under the heading 'arrest how made' coming under Chapter 5 with the caption 'arrest of person' reads thus :- "(1) In making an arrest the Police officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. (2)........ (3)............" The above section applies to all arrests whether made under a warrant or without a warrant, and prescribes the mode of arrest. The Criminal Procedure Code contains ....
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....5(1) Crl. P.C. Unless the person to be arrested is actually touched by the process server and that an arrest by mere oral declaration is not legal, and there can be no conviction under Section 225 I.P.C. (resistance or obstruction of lawful apprehension or escape of or rescue in cases not otherwise provided for) of a person who is so arrested. 33. In Campel v. Tormey 1979-1-W.L.R. 189 it was ruled that voluntary attendance at a police station is not an arrest. In the light of the decision in Campbell case, there are Indian decisions also holding the view that mere attendance or uttering of words not in conformity with the provisions of Section 45 Crl. P.C. does not amount to arrest. Vide In re Amarnath 5 All. 318. 34. Before the Queen's Bench division, in Alderson v. Booth 1969-2 All. E.R. 271, an interesting question came up for consideration as to whether the accused in that case had been arrested after the first breath test under Section 2(4) of the Road Safety Act, 1967. Lord Parker C.J. speaking for himself, observed thus : "There are a number of cases both ancient and modern, as to what constitutes an arrest; and whereas there was a time when it was held that t....
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....arrest. Otherwise, his action will be wholly without jurisdiction and in such a contingency the person to be arrested has got the right of private defence and can repel the arrest even by the violence subject to Section 99 Indian Penal Code. See In re Pedda Munni Reddi A.I.R. 1948 Mad. 472-1949-1-M.L.J. 377 and in re Mareda Somaiya A.I.R. 1945 Mad. 409 - 1945 M.W.N. 186 : 1945-1-M.L.J. 334. Therefore, in order to have the action of the arrester to be in conformity with the legal and constitutional provisions, it must be an arrest properly and lawfully made in terms of the specified provisions of the Criminal Procedure Code. If it is to be held that the actual seizure or touching of a person's body with a view to his arrest is not necessary, in order to make his arrest, but that the mere utterance of a guttural word or sound, a gesture of the index finger or hand, the sway of the head or even the flicker of an eye are enough to convey the meaning to the person concerned that he has lost his liberty and brought under arrest, as pointed out by the Division Bench in Kaisek Otmar's case 1981 L.W. Cr. 158, then it will not only be in conflict with the modality of arrest prescribed in Sec....
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....sarily prohibits the doing of the act in any other manner than that which has been prescribed. The principle behind the rule is that if this were not so, the statutory provision might as well not have been enacted." has finally concludes thus - "When a statute confers a power on certain judicial officers, that power can obviously be exercised only by those officers. No other officer can exercise that power, for it has not been given to him." In the result the Supreme Court upheld the view of the High Court in rejecting the oral evidence given by the Magistrate. 40. In yet another case, in Narbada Prasad v. Chhagalal A.I.R. 1969 S.C. 395, the Supreme Court, posing a question for its consideration whether there was power in a court to dispense with the compliance of the provisions of Section 33(5) of the Representation of the People Act, 1951, answered negatively, holding. "It is well understood rule of the law that if a thing is to be done in a particular manner it must be done in that manner or not at all. Other modes of compliance are excluded." The above principle was reaffirmed by the Supreme Court in State of Gujarat v. Shantilal A.I.R. 1969 S.C. 634,....
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....ons R.D.C. v. New Port Corporation 1952 S.C. 189 at 191 Lord Simons said - "The duty of the court is to interpret the words that the Legislature has used; those words may be ambiguous; but, even if they are, the power and duty of the court to travel outside them on a voyage of discovery are strictly limited. 46. In Nandini Satpathi's case, A.I.R. 1978 S.C. 1025, their Lordships of the Supreme Court have laid down the proposition of law as follows : "We feel that by successful interpretation judge-centred law must catalyse community-centred legality." We have already expressed that the modality of arrest indicated in Kaiser Otmar's case, 1981 L.W. Cr. 158 is not in conformity with Section 46 Crl. P.C. which section by itself is very clear. We feel that the Bench perhaps would not have laid down this dictum regarding the mode of arrest had Section 46 Crl. P.C. been brought to their notice. Further, the Bench has not also adverted to the leading Full Bench decision of this court in Collector of Customs v. Kotumal, A.I.R. 1967 Mad. 263, and Harbans Singh v. State A.I.R. 1970 Bom. 79, touching on this issue. For the reasons stated above, we hold that the rule lai....
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.... 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. As pointed out by the Supreme Court in Nathu v. State of Uttar Pradesh, A.I.R. 1956 S.C. 56, the prolonged custody may stamp the confessional statement so obtained as involuntary one, and the intrinsic value of such a statement may be vitiated. The question whether a person has been kept in prolonged custody is a question of fact, which has to be carefully considered against the background of the circumstances disclosed in each case. So, it is neither advisable nor possible to lay down any inflexible standards for the guidance of courts, though in the ultimate analysis, it is the court which is called upon to decide the circumstances of a particular case. 49. Mr. Kareem brought to t....
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....e 22(2) requires the arrester to produce the arrestee before a Magistrate within a period of 24 hours excluding the time necessary for the journey from the place of arrest to the court of the Magistrate. Thus, it is clear that the maximum time of 24 hours is provided under the Constitution for the production of an arrestee before the Magistrate. Therefore, needless to mention that once a person is arrested either by a Customs officer under Section 104(1) of the Customs Act or by a police officer under the provisions of the concerned Act or by any other person authorised to arrest, Article 22(2) of the Constitution of India will come into play and then the person arrested should be produced before a Magistrate without giving room for any complaint that Article 22(2) is violated. 52. It would be apposite in this connection to refer to the observations made in Harban Singh v. State A.I.R. 1970 Bom. 79 at page 81, paragraph 4, before which the same question was raised : "It is true that there is no provision similar to Section 61 Crl. P.C. (Old) [corresponding to Section 57 of the new Code, Crl. P.C. and which is analogous to Section 104(2) of the Customs Act] which lays do....
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....hould 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. 54 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. In the light of the views expressed above, 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. 55. M....