JUDGMENT 1. 1. This order would decide SB Criminal Miscellaneous Bail Applications Nos. 1358/91, 1512/91 and 1518/91, by a common order, as similar questions of facts and law are involved in all three bail-applications. 2. SB Cr. Misc. Bail Application No. 1538/91 has been filed by Swaroop Singh alias Saroop Singh and Sabbal Singh, who are at present lodged in the Central Jail, Jaipur. The facts in relation to them are that on 14th Apr., 91, the officers of the Directorate of Revenue Intelligence, Delhi Zonal Unit, New Delhi, intercepted one Maruty Gypsy, bearing registration No. GJ-1 9796, on Jalore-Sanderao Road, about 2 kms. away from Sanderao Chowk, and escorted the same, along with its two occupants, to Customs Office at Jodhpur. A search of the said Gypsy and its two occupants resulted in the recovery of 360 Gold-Biscuits of foreign-origin, valued at Rs. 1,45,68,616/-, from a specially made cavity in the front-bumper (behind the front number-plate). Statements of the two occupants, Swaroop Singh alias Saroop Singh and Sabbal Singh, under section 108 of the Custom Act, 1962 were recorded. On the basis of their statements, both of them were arrested on 14th Apr., 91, at 23.45 hrs., at Jodhpur. Both of them were produced under custody, before Additional Chief Judicial Magistrate No. 2, Jaipur City, Jaipur, on 15th Apr., 91, and they were remanded by the Magistrate, to judicial-custody, upto 29th Apr., 91, They filed a bail-application before the Sessions Judge, Jaipur City, Jaipur, who, looking to the facts and circumstances of the case and the gravity of the accusations against the petitioners, rejected their bail-application, by order dated 23rd Apr., 91, and directed that the investigation be completed with expedition. 3. S.B. Cr. Misc. Bail Application No. 1512/91 has been filed by Shah Mohammad and Rewat Ram. On 29th Apr., 91, the Police Officers of Check-post Guda Malani, apprehended Truck No. RJ-19 5411, which was being driven by Rewat Ram petitioner No.2; and Shah Mohammad was sitting in the said truck, near the driver. It is alleged that in the course of search, the Police Officers recovered 33 silver-bars, which were bearing foreign marks. The total weight of the said silver-bars was 1058.4 Kgs, valuing Rs. 17,91,280/-. It is alleged that in the course of search, the Police Officers recovered 33 silver-bars, which were bearing foreign marks. The total weight of the said silver-bars was 1058.4 Kgs, valuing Rs. 17,91,280/-. The truck was seized; and the Police Officers handed over the seized silver on 1st May, 91, to the Customs officials, at Barmer, who, on that date, prepared a seizure-memo about the seizing of the truck and the silver-bars. The Customs Officers recorded statements of both the petitioners under section 108 of the Customs Act, 1962, and produced both the petitioners under arrest, before the Special Magistrate (Economic Offences), Jaipur, on 3rd May, 91, and they were remanded to Judicial Custody, by the Special Magistrate, upto 18th May, 91. Both the petitioners submitted a bail-application, for bail, under Section 439, Cr.P.C. before the Sessions Judge, Jaipur City, Jaipur, which was rejected by him, on 8th May, 91. 4. SB Cr. Misc. Bail Application No. 1518/91 has been filed by Chhagandan. The case against Chhagandan is that on 225th Apr.,'91, the Customs Officers of Customs Ranges, Sam/Miyazlar, intercepted Truck No. RNQ- 5727, and recovered therefrom 1,000 foreign-marked gold-biscuits, valuing about Rs. 4,22,50,000/-. The truck was being driven by the petitioner. Tanerao Singh alias Tan Singh was the owner of the said truck. The petitioner, along with Tanerao Singh, was produced before the Chief Judicial Magistrate, Jaipur, who remanded them to Judicial Custody upto 10th May, 91, Both Tanerao Singh and the petitioner filed a bail-application before the Special Judicial Magistrate (Economic Offences), Jaipur, on 29th Apr., 91, and the same was rejected by the Special Judicial Magistrate. The petitioner then filed a bail-application under Section 439, Cr. P.C. before the Sessions Judge, Jaipur City, Jaipur, who rejected the bail-application on 8th May, 91, 5. All the above petitioners have filed these three bail applications under Section 439, Cr. P.C., before this Court. 6. The matter was heard at length. The petitioner then filed a bail-application under Section 439, Cr. P.C. before the Sessions Judge, Jaipur City, Jaipur, who rejected the bail-application on 8th May, 91, 5. All the above petitioners have filed these three bail applications under Section 439, Cr. P.C., before this Court. 6. The matter was heard at length. The learned counsel appearing for the petitioners urged that under section 104(1) of the Customs Act, 62, if an officer of Customs empowered in this behalf by general or special order of the Collector of Customs, has reason to believe that any person in India, or within the Indian Customs Waters, has been guilty of an offence punishable under section 135, he may arrest such person, and shall, as soon as may be, inform him, of the grounds for such arrest. On the basis of the language of sub-section (1) of Section 104, it was urged that arrest can be made under this sub-section only when the officer of Customs has reason to believe that the person has been guilty of an offence punishable under section 135, and such belief can only be found after an inquiry is held in the matter and a belief is formed that the person is guilty of a offence punishable under section 135. No such belief, it was urged, was formed after an inquiry. 7. It was next urged that by virtue of sub-section(4)of Section 104, notwithstanding anything contained in the Code of Criminal Procedure, an offence under the Customs Act, is not cognizable. Thus, the offence under section 135 of the Customs Act, is a non-cognizable offence, and cannot, therefore, be investigated by the police. It is further provided in Section 137 of the Customs Act that no court shall take cognizance of any offence under section 132, 133, 134 or under section 135, except with the previous sanction of the Collector of Customs. It is further provided in Section 137 of the Customs Act that no court shall take cognizance of any offence under section 132, 133, 134 or under section 135, except with the previous sanction of the Collector of Customs. It was contended that although by virtue of sub-section(3)of Section 104 of the Customs Act where an officer of Customs has arrested any person under sub-section(1) thereof, he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the officer-incharge of a police station, has and is subject to under the Code of Criminal Procedure, but, for the purposes of Section 167 of the Code of Criminal Procedure, the officer of Customs, is not an officer-incharge of a police station, or a police officer making the investigation; and consequently, the Magistrate before whom a person arrested under sub-section (1) of section 104 of the Customs Act, is produced under sub-section (2) thereof, has no power to authorise detention of the person accused, under the Customs Act, either in the custody of the officer of Customs, or in judicial Custody. It was further contended that even if the offence under section 135 of the Customs Act, is held to be a non-bailable offence by virtue of classification made in part-I of the First Schedule to the Code of Criminal Procedure, 73, the court, before which, the accused is produced or brought, and who is not released on bail under section 437 of Code cannot be remanded by the court or committed by it to any custody. There is, it was argued, no implied power of remand under Section 437, Cr.P.C. The further contention was that Section 309(2) of the Code of Criminal Procedure, has also no application, because, it applies only after the court has taken cognizance of an offence. It was, therefore, urged that the petitioners ought to have been released on bail under Section 437, Cr.P.C., by the Special Judicial Magistrate (Economic Offences), and on his refusal to do so, by the Sessions judge, under Section 439, Cr.P.C. 8. Learned counsel for the petitioners relied upon the Full Bench decision of the Delhi High Court in Deepak Mahajan v. Director of Enforcement and another, 1991 Cri. L.J. 1124. 9. As against this, Mr. Learned counsel for the petitioners relied upon the Full Bench decision of the Delhi High Court in Deepak Mahajan v. Director of Enforcement and another, 1991 Cri. L.J. 1124. 9. As against this, Mr. R. S. Chauhan, the learned counsel for the Customs Department, urged that even if the officer of Customs may not be an officer-incharge of a police station, or a police officer, but, that does not imply that a Magistrate does not have power to remand the person arrested under section 104(1) of Customs Act, to Judicial Custody. He also urged that sub-sections (1) & (5) of Section 437, Criminal Procedure Code, read with Section 4(2) thereof, spell out an implied power of remand for the Magistrate, to commit a person produced before him,to custody. Reliance was placed by him on the decisions in Nagendra Prasad v. State, 1987 Cri. L.J. 215 (Patna) ; N.H. Dave, Inspector of Customs v. Md. Akhtaar Hussain Ibrahim Abdul Kader, 1984 (15) ELT 353 (Guj.) and Superintendent of Customs CIU, Cochin v. Ummerkutty, 1983 Cri. L.J. 1860 (Kerala). 10. Mr. K.N. Shrimal, the learned counsel for the Customs Department appearing in SB Criminal Misc. Bail Applications Nos. 1512/91 & 1518/91, urged that even if the bail-applications are considered on merits, they should be rejected as the petitioners are likely to tamper with the evidence and may further indulge in similar activities. He relied upon the decision of their Lordship of the Supreme Court, in State of Maharashtra v. Nainmal Punjaji Shah, 1970 SCC (Cr.) 170. Mr. K.N. Shrimal also referred to the Full Bench decision of this Court in Mahesh Chand etc. v. State of Rajasthan, 1984 RLR 697 to contend that according to the contention of the learned counsel for the petitioners, the petitioners are illegally detained in custody. If that be so, bail is no remedy for illegal detention, and only a habeas corpus petition lies. 11. Mr. S.R. Bajwa, Advocate, appearing as an intervener, urged that under section 309(2) of the Code of Criminal Procedure, the Special Magistrate has the power to remand the petitioners to custody. According to him, the provisions contended in Section 309(2) apply even in relation to the stage of inquiry, before filing of a criminal complaint. 12. 11. Mr. S.R. Bajwa, Advocate, appearing as an intervener, urged that under section 309(2) of the Code of Criminal Procedure, the Special Magistrate has the power to remand the petitioners to custody. According to him, the provisions contended in Section 309(2) apply even in relation to the stage of inquiry, before filing of a criminal complaint. 12. I have given my earnest consideration to the rival contentions put forward by both the sides, and have also gone through the various decisions, relied upon by them. Having given my anxious consideration, I hold the following opinion : (1) The power under sub-section(2) of Section 167 of the Code of Criminal Procedure, is not an independent power, and is controlled by sub-section (1)of section 167. The Magistrate under sub- section (2) of Section 167 of the Code of Criminal Procedure, can authorise detention of an accused, in custody, only when an accused is forwarded to a Magistrate, by an officer-incharge of a police station, or by a police officer, making the investigation. The Customs Officer are not Police Officers and they are also not.officer-incharge of police stations. For the limited purpose of releasing any person arrested by them, on bail,or otherwise, they have the same powers and are subject to the same provisions as the officer-incharge of a police station has, and is subject to, under the Code of Criminal Procedure. Since the Customs officers are not officers-incharge of police stations, or police officers, when an arrested person is taken to Magistrate under section 104(2) of the Customs Act, he is not forwarded to the Magistrate under section 167(1)of the Code of Criminal Procedure, but, he is taken to the Magistrate under section 104(2) of the Customs Act, which provision in the Customs Act, was necessary on account of the fundamental rights guaranteed under Article 22(2)of the Constitution of India. The provisions of sub-section (2) of Section 104 of the Customs Act, are in conformity with the constitutional mandate under Article 22(2) of the Constitution, which provides that every person arrested and detained in custody shall be produced before the nearest Magistrate, within a period of twenty-four hours of such arrest, including the time necessary for journey from the place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. This constitutional mandate is to safeguard the fundamental right of personal liberty, guaranteed to every person, by Article 21 of the Constitution. (ii) The Customs Act is completely silent on what the Magistrate is required to do when a person arrested under sub-section (1) of Section 104, is taken to the Magistrate under sub-section (2) thereof. (iii) The Magistrate has no inherent power of remand of an accused to any custody, unless the power is conferred by law. Article 21 of the Constitution dearly provides that no person shall be deprived of his life or personal liberty, except according to the procedure established by law. (iv) Section 437 of the Code of Criminal Procedure, when made applicable to the offences under the Customs Act, by virtue of Section 4(2) of the Code, it only gives discretionary power to the Magistrate, either to grant or refuse bail. If the Magistrate, after considering the facts and circumstances of the case, and after applying his judicial mind, comes to the conclusion that he should not grant bail to person accused or suspected of a non-cognizable offence, he passes an order refusing bail. However, there is no mention in Section 437, Criminal procedure code, regarding remand or detaining the person accused in custody. The only relevant provisions which give power to the Magistrate to authorise detention of the accused in custody, are those contained in Sections 167(2) & 309 of the Code of Criminal Procedure, or if the offence is committed in the presence of the Magistrate, reman-can be ordered, as provided in section 44 (1) of the Code. The power conferred on a court under Section 437(5) of the Code is a power of cancellation of bail, and it only applies when a person has once been released under sub-section(1) of Section 437, on bail, and it is considered necessary to re-arrest that person and commit him to custody. No implied power of remand can be spelled out from Section 437 of the Code of Criminal Procedure. (v) By virtue of sub-section (4) of Section 104 of the Customs Act, the offence under section 135 of that Act, is a non-cognizable offence. A non-cognizable case cannot be investigated by a police officer without the order of a Magistrate, having power to try such a case or commit the case for trial. (v) By virtue of sub-section (4) of Section 104 of the Customs Act, the offence under section 135 of that Act, is a non-cognizable offence. A non-cognizable case cannot be investigated by a police officer without the order of a Magistrate, having power to try such a case or commit the case for trial. It is only under the orders of such Magistrate that a police officer can investigate a non-cognizble case, and exercise the same powers in respect of the investigation as the officer-incharge of a police station may exercise in a cognizable offence. For making arrest during such investigation, the police officer shall have to obtain from the court, a warrant of arrest. In the present case, no such contingency of investigation by a police officer, of the offence under section 135 of the Customs Act, has arisen. (vi) Section 309(2) of the Code of Criminal Procedure would not apply, because, it applies only after the court has taken cognizance of an offence. In the instant case, no cognizance was taken by the Special Judicial Magistrate under section 135 of the Customs Act, against the petitioners, nor could it be taken except with the previous sanction of the Collector of Customs, on account of the provisions contained in Section 437 of the Custom Act. It may be stated that the language of Section 344 of the old Code of Criminal Procedure of 1898, was different from the language of Section 309(2) of the Code of Criminal Procedure, 1973. It may be stated that the language of Section 344 of the old Code of Criminal Procedure of 1898, was different from the language of Section 309(2) of the Code of Criminal Procedure, 1973. In sub-section (1-A) of Section 344 of the old Code, the language was, "If from the absence of a witness, or any other reasonable cause, it becomes necessary or advisable to postpone the commencement of, or adjourn any inquiry or trial, the Court may, if it thinks fit, by order in writing, stating the reasons therefor, from time to time, 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." By the express language of sub-section(1-A) of Section 344 of the old Code of Criminal Procedure and the Explanation thereto, commencement of inquiry or trial could also be postponed and there were no limitations on the power of the court, as are contained in the present Section-319 (2) of the Code of Criminal Procedure, 1973, that this power can only be exercised by the Court, after taking cognizance of an offence. The words, "after taking cognizance of an offence" were not there in Section 344 (1-A) of the old Code. Under the old Code, therefore, the power of remand could even be exercised at the stage of investigation. Under the provisions contained in the present Code, the power of remand can only be exercised by the Court after it has taken cognizance of the offence. That makes the vital difference between the provisions contained in Section 344 (1-A) of old Code and Section 309(2) of the new Code of Criminal Procedure. (vii) It is true that Article 22(2) of the Constitution inter alia states that no person who is arrested and detained in custody shall be detained in custody beyond the period mentioned in the Article, without the authority of a Magistrate. The source of authority of the Magistrate has to be found in the Code of Criminal Procedure, 1973, which is an act to consolidate and amend the law relating to Code of Criminal Procedure, and which applies even to offences under laws other than the Indian Penal Code, by virtue of Section 4(2) in the Code of Criminal Procedure. The source of authority of the Magistrate has to be found in the Code of Criminal Procedure, 1973, which is an act to consolidate and amend the law relating to Code of Criminal Procedure, and which applies even to offences under laws other than the Indian Penal Code, by virtue of Section 4(2) in the Code of Criminal Procedure. Article 21 of the Constitution clearly provides that no person shall be deprived of his life or personal liberty except according to procedure established by law. It is, therefore, necessary to search for a power to remand to custody, by the Magistrate, either under the Code of Criminal Procedure, or under the special law. In relation to arrest of a person under section 104(1) of the Customs Act, for offence under section 135 of that Act, there is no power of remand to the Magistrate, and there exists none in the Code of Criminal Procedure at a point of time before the Court takes cognizance of the offence. (viii) If Section 437 of the Code of Criminal Procedure is allowed to have full play, the Magistrate is not bound to grant bail. He can as well refuse it. if he refuses it, he has no power to authorise continued detention of the person arrested, either under the Code or under the Customs Act. Section 437 cannot, therefore, apply. The detention, after the person arrested is produced before the Magistrate, in cognizance with the provisions contained is Section 104(2) of the Customs Act, would be an illegal detention. I am of the opinion that the Full Bench of the Delhi High Court in its decision in Deepak Mahajan's case (supra) laid down the law substantially more correct than the decision of the Patna, Gujarat & Kerala High Courts. (ix) For an illegal detention, the remedy is not bail but a writ petition, under Article 226 or 32 of the Constitution of India, for grant of a writ of habeas corpus. In this regard, I am bound by the Full Bench decision of this Court in the case of Mahesh Chand etc. v. State of Rajasthan (supra). (ix) For an illegal detention, the remedy is not bail but a writ petition, under Article 226 or 32 of the Constitution of India, for grant of a writ of habeas corpus. In this regard, I am bound by the Full Bench decision of this Court in the case of Mahesh Chand etc. v. State of Rajasthan (supra). I may quote the observations of Hon'ble (Dr.) K. S. Sidhu, J : "If an accused person is illegally detained in prison, the least that a court of law is expected to do for him is to quash the illegal detention and set him at liberty forthwith. Bail is no remedy for illegal detention. Bail is a form of detention by other means. Instead of being detained in prison, the accused is transferred to the custody of his sureties who are his jailors of his own choosing, and the Court still retains its inherent power to deal with him-(Sec. 8 Corpus Juris Secundum) (Bail Section 31). Similarly, the authors of Halsbury's Laws of England, Third Edition, Volume 10, page-373, state that the effect of granting bail is not to set the accused free, but to release him from the custody of the free, but to release him from the custody of the *and law* to entrust him to the custody of his sureties, and the sureties may discharge themselves by handing him over to the custody of the law. Hari Jowitt in Jowitt's Dictionary of English Law (Second Edition) is of the same opinion (page-173) that the accused is said to be admitted to bail when he is released from the custody of officers of the law and is entrusted to the custody of persons known as his sureties. Our own law is no different. A person released on bail is considered in our law, to be detained in the constructive custody of the court through his sureties. A Division Bench of the Patna High Court held in Krishna Singh v. State of Bihar (1967 Cr. L. J. 1118) that a person released on bail remains in the constructive custody of the court through surety and his liberty is thus subject to restraint. A Division Bench of the Patna High Court held in Krishna Singh v. State of Bihar (1967 Cr. L. J. 1118) that a person released on bail remains in the constructive custody of the court through surety and his liberty is thus subject to restraint. Section 444 of the New Code lays down that the sureties may apply to the Magistrate to discharge the bond, and, on such application being made, the Magistrate shall cause the accused to be arrested and brought before him." It may, therefore, be safely held that bail is no remedy, and has never been conceived or intended in law to be remedy, for illegal detention." 13. In view of my opinion that the detention of the petitioners in Judicial Custody, by the Magistrate, was an illegal detention, the remedy to the petitioners is not application for bail, but, it lies in moving a petition for a writ of habeas corpus. 14. On this ground, I dismiss all the three bail applications.Bail applications dismissed. *******