JUDGMENT 1. - The learned Chief Judicial Magistrate (Economic Offences), Jaipur has made this reference with regard to Section 104 of the Customs Act and Section 309, Cr.P.C. 2. To understand the point of reference I just give in nutshell the facts of this case. Mohanlal Tambi and others were arrested for the contravention of some provisions of the Customs Act. On an information, the Customs Department raided the business premises of M/s. Shiv Shankar Lal Gupta, Baba Harish Chandra Marg, Jaipur, from 14-1-81 to 17-1-81 and recovered/seized contravened precious/semi-precious stones weighing 2156/279 kgs. valued of Rs. 14,04, 017.70 p. under section 110 of the Customs Act, 1962, on a reasonable belief that the said goods have been acquired/ possessed/controlled/imported in contravention of the provisions o f Section 3(1) of the import and Export (Control) Act, read with Section 11 of the Customs Act, 1962. In this context Mohanlal Tambi was interrogated under Section 108 of the Customs Act, and his statement was recorded. No specific in formation could be obtained from Mr. Tambi by his interrogation. The customs Authorities then arrested him on 20-1-81, and he has been under arrest for two days or more, when he submitted an application under Section 439, Cr. P.C. Until this day, the Customs Authorities have not been able to obtain any information from him regarding the discovery of any fact relevant to this case, The bail application was accepted by the learned Sessions Judge, and Mr. Mohanlal Tambi was released on furnishing surety and bail bonds. Thereafter on 18-8-82, Mr. Tambi filed an application under Section 104 of the Customs Act before the learned Chief Judicial Magistrate. In this application, he has mentioned that he has been released on bail on 22-1-81 before taking cognizance against him by the Court for contravention of any provisions of the Customs Act. According to him, after his release on bail adjournment can only be given under Section 309. Cr. PC Section 167, Cr. PC is applicable only when the accused is in police custody. The corresponding section to Section 309, Cr.P.C. is the old Section 344, Cr. P.C. According to that old section 344, Cr. PC, the Court was empowered to grant adjournment, though cognizance of the case had been taken or not but under Section 309, Cr. PC adjournment can only be granted when the Court takes cognizance of case. The corresponding section to Section 309, Cr.P.C. is the old Section 344, Cr. P.C. According to that old section 344, Cr. PC, the Court was empowered to grant adjournment, though cognizance of the case had been taken or not but under Section 309, Cr. PC adjournment can only be granted when the Court takes cognizance of case. He has alleged that since in the Customs Act and the Foreign Exchange-Regulation Act there is no provision to grant adjournment without taking cognizance, he should not be asked to attend the Court, and if the department files any complaint, a notice be given to him and he will attend the court accordingly. On this application, the learned Chief Judicial Magistrate heard both the sides and made this reference to this Court. 3. What the intention of the learned Chief-Judicial Magistrate is, that when the accused is released on bail and the Court has not taken cognizance of the case against him, is it binding on the accused to attend the court on every date, or, in other words, after the release of the accused on bail, the department will file a complaint against him and when the court takes notice of the complaint, then accused be informed about the date of his appearance. So is it binding on the person to come to the Court on every date of hearing without the cognizance being taken by the Court. 4. I have pursued the order of the learned Chief-Judicial Magistrate and also heard Mr. Khandelwal appearing on behalf of the accused. 5. Section 104 of the Customs Act, 1962 gives power to arrest a person by an officer of the Customs Department, who is empowered in this behalf by general or special order of the Collector of Customs. Whenever, an officer, who is so empowered arrests any person, he may take him without unnecessary delay to Magistrate. The Magistrate under Section 167 Cr. PC is empowered to grant remand to the accused person. But, in this case, the accused had submitted an application under Section 439, Cr. PC, and the learned Sessions Judge has ordered to release him on furnishing surety and bail bonds. So, now Section 167, Cr. PC does not apply. The direction of the learned Sessions Judge is that he shall appear in the Court as and when called for. But, in this case, the accused had submitted an application under Section 439, Cr. PC, and the learned Sessions Judge has ordered to release him on furnishing surety and bail bonds. So, now Section 167, Cr. PC does not apply. The direction of the learned Sessions Judge is that he shall appear in the Court as and when called for. As the order sheets of the case show, he is attending the Court on every date of hearing given by the learned Chief-Judicial Magistrate and the proceeding always is that "for submitting challan, the case is adjourned." The argument of the learned counsel for the respondent is that the court is empowered to adjourn case only under Section 309, Cr.P.C. Section 30(2), Cr.P.C. says that if the Court, after taking cognizance of an offence, or commencement of trial, finds it necessary or advisable to postpone the commencement or adjourn, an enquiry or trial, it may from time to time, for reasons to be recorded, postpone or adjourn the same, on such terms as it thinks fit, for such time as it considers reasonable, and may by a warrant remand the accused, if in custody. From a reading of this Section 300, Cr.P.C., it is clear that the Court has power to adjourn the case only after taking cognizance of an offence or commencement of a trial and not otherwise. If the Court has not taken cognizance of the offence, or has not started the trial of the case, in that case the court has no power to grant adjournment in the case and the accused cannot be bound down to appear in the court in anticipation of the submission of challan or starting of the trial against him. 6. There is another aspect also to be looked into. Mr. Mohanlal Tambi has been arrested with regard to some contravention of the provi-sions of the Customs Act. Until a complaint is filed by the Customs Department against him. he cannot be called to be an accused. A remand is given to an accused person under Section 167, Cr. PC, but when the person has been ordered to be released on bail, then the question of remand does not arise. In that circumstance, Section 309, C. PC comes into play. That too is with regard to adjournment of the case. A remand is given to an accused person under Section 167, Cr. PC, but when the person has been ordered to be released on bail, then the question of remand does not arise. In that circumstance, Section 309, C. PC comes into play. That too is with regard to adjournment of the case. After taking cognizance of the case, the court is empowered to adjourn the case as laid down under Section 309(2), Cr. PC. For this also, taking of cognizance of the case or commencement of the trial is necessary. In the present " case, the learned Chief-Judicial Magistrate has not taken cognizance of the case, and so the trial has not commenced against the accused. It means that the learned Chief-Judicial Magistrate could not pass any order of adjournment under Section 309, C. PC. During the arguments, the learned P.P. did not show to me any provision under the Customs Act under which the case can be adjourned by the Court without taking cognizance. 7. The learned Chief-Judicial Magistrate in his order has referred to a case of Delhi High Court in Dalam Chand Baid v. Union of India and Ors., 1982 Cr.L.J. 747 . In this case, it has been observed as under : "As regards the proceedings before the Additional Chief Metropolitan Magistrate, it is claimed that the petitioner was not an accused person and no judicial custody could be ordered by the Magistrate. It is also claimed that the remand to judicial custody is unlawful. Reliance is placed on the decision in Brain Barnnet v. The Collector of Custom, Cr. W. No. 30 of 1969 D/d. by Delhi High Court 27.2.1969 . The petitioner's case is that he is not an accused person until a complaint is filed and he could not be remanded to judicial custody. Alternatively, if the Enforcement Officer is to be treated as a police officer, then the claims that his statement is inadmissible in evidence. 8. It has further been observed as under : "The provisions of Section 104 of the Customs Act, 1962 and of Section 35 of the Foreign Exchange Regulation Act, 1973, are partially the same. In one case the power to arrest is exercisable by a specially authorised officer concerned ma) arrest the person believed to be guilty of an offence punishable as prescribed by the Act and inform him of the grounds for such arrest. In one case the power to arrest is exercisable by a specially authorised officer concerned ma) arrest the person believed to be guilty of an offence punishable as prescribed by the Act and inform him of the grounds for such arrest. Under Sub-section (2) such an arrested person has to be taken to a Magistrate without unnecessary delay. Sub-section (3) gives the officer of Enforcement of the officer of Customs, as the case may be, the same power for releasing the arrested person on bail or otherwise, and subject to the same provisions as are available to an officer-in-charge of a Police Station. However, neither Act indicates what the Magistrate has to do after the arrested person has been produced before him. The question that has arisen before us is whether the arrested person can be remanded to Judicial Custody, or has necessarily to be given bail. Even if he refuses to furnish the bail can the Magistrate order his detention." 9. While releasing the petitioner, it was also observed that unless the power to remand can be found in some provisions of the Foreign Exchange Regulation Act, 1973 and the Code of Criminal Procedure, 1973, we have to hold that there was no power to remand. We have reluctantly come to the conclusion that we cannot find any provision allowing the remand. We also do not accept the contention that section 437 of the Code permits the petitioner to put in jail, if bail is refused or not furnished. So, it was held that remand to the judicial custody was not valid and, therefore, the petitioner is being detained without the authority of law. 10. In view of the principle enunciated in the above cited case, I am of the opinion that unless the Court takes cognizance of the case or the trial is commenced, it is not necessary for the person, who has been ordered to be released on bail, to attend the Court till the challan is submitted. When the complaint or challan will be submitted in the Court, a notice can be given to the accused for appearance. I will like to mention that after giving notice to the accused, challan should be filed in the Court, so that there may not any delay in the trial. When the complaint or challan will be submitted in the Court, a notice can be given to the accused for appearance. I will like to mention that after giving notice to the accused, challan should be filed in the Court, so that there may not any delay in the trial. If in case the challan is submitted, then after taking cognizance the court will issue notice to the accused to appear on the date fixed by the court. Till cognizance is taken, in my view, it is not necessary for the accused to come to the Court on every date given by the Court as Section 309 Cr. PC does not permit such an adjournment. 11. The reference, is, therefore, answered in the manner that Section 309, Cr. PC does not empower the Court to call the accused on every date when the case is adjourned for want of challan. The Court is empowered to adjourn the case only after taking cognizance or after commencement of the trial, and till then the Court is not empowered either to remand the accused or to call the accused on the date so fixed. The proper way is to issue notice to the accused to appear before the Court as and when challan complaint is submitted and cognizance is taken by the Court. 12. With the above observations, I hereby direct that the record be returned to the Court of learned Chief-Judicial Magistrate (Economic Offences) Rajasthan, Jaipur immediately.Reference answered. *******