GITESH RANJAN BHATTACHARJEE, ( 1 ) IN this revisional application several important questions of law have been raised which will be discussed later. On 16/09/1988 the petitioners, who were earlier arrested on the 15/09/1988 by customs officials under S. 104 of the Customs Act, 1962, were produced before the learned Sub-Divisional Judicial Magistrate, Ranaghat, Nadia and they were remanded to jail custody after rejection of their prayer for bail. Thereafter on 30/09/1988 the petitioners were released on bail by the learned Sub-Divisional Judicial Magistrate. Subsequently on the basis of a complaint filed by the Superintendent of Customs in respect of offence punishable under Section 135 (1) (b) (ii) of the Customs Act, 1962, the learned Magistrate took cognizance. ( 2 ) THE first point argued before me by Mr. Ghosh on behalf of the petitioners is that the cognizance taken by the learned Magistrate in this case is bad in law of the fact that the complaint on the basis of which the cognizance was taken was filed, on completion of investigation, after the expiry of the period prescribed in S. 167 (5), Cr. P. C. as applicable to the case. This in turn raises the question whether S. 167, Cr. P. C. will be attracted to a prosecution for an offence punishable under S. 135 of the Customs Act. Section 100, Section 101, Section 105, Section 106 and Section 110 of the Customs Act provide for search and seizure by appropriate customs officials. Section 107 authorises the empowered customs officer, during the course of an inquiry in connection with the smuggling of any goods, to require any person to produce or deliver any document or thing relevant to the enquiry and also to examine any person acquainted with the facts and circumstances of the case. Section 108 empowers a gazetted officer of customs to summon any person whose attendance he considers necessary either to give evidence or to produce a document or thing in any enquiry which such officer is making in connection with the smuggling of any goods. Section 106a gives power of inspection to an authorised Customs Officer. Sub-Section (1) of S. 104 of the Customs Act authorises an empowered customs officer to arrest any person if such officer has reason to believe that such person has been guilty of an offence punishable under S. 135 of the Customs Act. Section 106a gives power of inspection to an authorised Customs Officer. Sub-Section (1) of S. 104 of the Customs Act authorises an empowered customs officer to arrest any person if such officer has reason to believe that such person has been guilty of an offence punishable under S. 135 of the Customs Act. Sub-Section (2) of S. l04 requires the person so arrested to be taken to a Magistrate without unnecessary delay. Sub-Section (3) of the said Section provides that an officer of customs arresting any person under Sub-Section (1) shall have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subject to under the Code of Criminal Procedure, for the purpose of releasing such person on bail or otherwise. For better appreciation Section 104 of the Customs Act is reproduced below :"s. 104. Power to arrest -1) 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 S. 135, he may arrest such person and shall, as soon as may be, inform him of the grounds for such arrest. 2) Every person arrested under Sub-Section (1) shall, without unnecessary delay, be taken to a Magistrate. 3) Where an officer of customs has arrested any person under Sub-Section (1), 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-in-charge of a police station has and is subject to under the Code of Criminal Procedure, 1898. 4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898, an offence under this Act shall not be cognizable. " ( 3 ) IT is therefore evident that an offence under the Customs Act being non-cognizable the police, on their own authority, cannot investigate any offence under the Customs Act and also cannot arrest any person for or in connection with an offence under the said Act. " ( 3 ) IT is therefore evident that an offence under the Customs Act being non-cognizable the police, on their own authority, cannot investigate any offence under the Customs Act and also cannot arrest any person for or in connection with an offence under the said Act. It is also seen that an empowered customs officer having reason to believe that any person has been guilty of an offence punishable under S. 135 of the Customs Act may arrest such person in which case however he is required to be informed of the grounds for such arrest and is also required to be taken to a Magistrate without unnecessary delay. The officer of customs arresting a person has been given power of an officer-in-charge of police station as is available under the Code of Criminal Procedure for the purpose of releasing such person either on bail or otherwise. In this connection what is significant to be noted is that the customs officials have not been given the same power as available to the officer-in-charge of a police station under the Criminal Procedure Code for the purpose of investigation or for other purposes except for the purpose of releasing the arrested person. There are however as we have seen, independent provisions made for search, seizure, inspection, arrest, examination of persons and even inquiry under the Customs Act which can be said to create independent powers for customs officials to deal with matters coming within the ambit of the Customs Act. Section 108 of the Customs Act contains provisions for summoning any person to give evidence and produce document in any inquiry in connection with the smuggling of any goods. Sub-Section (4) of S. 108 provides that every such inquiry shall be deemed to be a judicial proceeding within the meaning of Section 193 and Section 228 of the Indian Penal Code. The Customs Act also contains provisions for confiscation of goods, etc. and imposition of penalty by the appropriate customs officials, apart from prosecution of the offenders in court for commission of offence under the Customs Act. Sub-Section (1) of S. 137 of the Customs Act provides that no court shall take cognizance of an offence under Section 132, Section 133, Section 134 or Section 135, except with the previous sanction of the Collector of Customs. Sub-Section (1) of S. 137 of the Customs Act provides that no court shall take cognizance of an offence under Section 132, Section 133, Section 134 or Section 135, except with the previous sanction of the Collector of Customs. Section 138 provides that notwithstanding anything contained in the Code of Criminal Procedure an offence under Chapter-XVI other than an offence punishable under clause (i) of Sub-Section (1) of Section 135 or under Sub-Section (2) of that Section may be tried summarily by a Magistrate. The word may in this connection indicates that the exercise of the power of summary trial is optional. ( 4 ) IT is the contention of Mr. Ghosh on behalf of the petitioners that the proceeding before a Magistrate from the date of production of a person arrested under Section 104 of the Customs Act till a petition of complaint is filed by the appropriate customs officer before such Magistrate with necessary sanction under S. 137 of the Customs Act, will attract the provisions of S. 167 of the Criminal Procedure Code and accordingly if the petition of complaint is not filed before the learned Magistrate within the statutory period mentioned in Sub-Section (5) of Section 167, Cr. P. C. reckoned from the date of production of the arrested person before the Magistrate under S. 104 of the Customs Act, the inquiry or investigation, whatever may it be, will have to be stopped and the accused discharged under S. 167 (5), Cr. P. C. and any cognizance taken by the Magistrate on a petition of complaint filed before the Magistrate after the expiry of the statutory period prescribed in S. 167 (5) will be bad in law and will be liable to be quashed. In this connection, it is considered necessary to reproduce certain portions of S. 167, Cr. P. C. Sub-Section (1) and Sub-Section (2) of Section 167, Cr. P. C. run thus :-"167. In this connection, it is considered necessary to reproduce certain portions of S. 167, Cr. P. C. Sub-Section (1) and Sub-Section (2) of Section 167, Cr. P. C. run thus :-"167. Procedure when investigation cannot be completed in twenty-four hours -1) Whenever any person is arrested and detained in custody, and it appears that the investigation cannot be completed within the period of twenty-four hours fixed by Section 57, and there are grounds for believing that the accusation or information is well founded, the officer-in-charge of the police station or the police officer making the investigation, if he is not below the rank of sub-inspector, shall forthwith transmit to the nearest Judicial Magistrate a copy of the entries in the diary hereinafter prescribed relating to the case, and shall at the same time forward the accused to such Magistrate; 2) The Magistrate to whom an accused is forwarded under this Section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, for a term not exceeding fifteen days in the whole, and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction; provided that -a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding,- i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this Sub-Section shall be deemed to be so released under the provisions of Chapter-XXXIII for the purposes of that chapter; b) no Magistrate shall authorise detention in any custody under this Section unless the accused is produced before him; c) no Magistrate of the second class, not specially empowered in this behalf by the High Court shall authorise detention in the custody of the police; explanation-I. For the avoidance of doubts it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. Explanation-II. If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention". Sub-Section (3) of Section 167, Cr. P. C. provides that a Magistrate authorising under the said Section detention in the custody of the police shall record his reasons for so doing. Sub-Section (5) of Section 167, Cr. P. C. as amended in West Bengal by the West Bengal Act, 24 of 1988 is also required to be closely studied in this connection and is accordingly reproduced below :"s. 167 (5) - if, in respect of -i) any case triable by a Magistrate as a summons case, the investigation is not concluded within the period of six months, or ii) any case exclusively triable by a Court of Session or a case under Chapter-XVIII of the Indian Penal Code (45 of 1860), the investigation is not concluded within a period of three years, or iii) any case other than those mentioned in clauses (i) and (ii), the investigation is not concluded within a period of two years, from the date on which the accused was arrested or made his appearance, the Magistrate shall make an order stopping further investigation into the offence and shall discharge the accused unless the officer making the investigation satisfies the Magistrate that for special reasons and in the interests of justice the continuation of the investigation beyond the period mentioned in this Sub-Section is necessary. " ( 5 ) IT is not difficult to see that by its own terms Section 167, Cr. P. C. applies and is attracted to investigation made by police. It may also be seen that Sub-Section (2) of Section 167 applies only to cases where a person is forwarded to a judicial Magistrate under arrest by an officer-in-charge of the police station or the police officer making the investigation. P. C. applies and is attracted to investigation made by police. It may also be seen that Sub-Section (2) of Section 167 applies only to cases where a person is forwarded to a judicial Magistrate under arrest by an officer-in-charge of the police station or the police officer making the investigation. In Sub-Section (2) the Magistrate is empowered to authorise the detention of the accused ordinarily for a period not exceeding fifteen days in the whole and such detention up to fifteen days may be in police custody or judicial custody, but the Magistrate may also authorise the detention of the accused in judicial custody under S. 167, for a period up to ninety days or sixty days as the case may be, depending upon the nature of the offence and on the expiry of such period the accused has to be offered bail if the investigation yet continues. It, however, should be pointed out at the same breath that S. 167, Cr. P. C. must not to be so construed as to hold that the accused has to be released on bail in all cases and in all circumstances, after the expiry of the said period of ninety days or sixty days, as the case may be. Section 167, Cr. P. C. applies for bail only during the pendency of the investigation and the period of ninety days or sixty days as mentioned in the proviso (a) to Sub-Section (2) of S. 167, Cr. P. C. limits the extent of detention during investigation. The said Sub-Section (2) prescribes the maximum period of detention during the pendency of the investigation. The accused has a right to bail under S. 167 (2), Cr. P. C. on the expiry of ninety days or sixty days as the case may be, if the investigation is not completed within the said period. Where however the investigation is completed within the said period and charge-sheet is submitted by police within the said period of ninety days or sixty days, as the case may be, bail as a matter of right is no more available to the accused which he would have been entitled to had not the investigation been concluded within the said period. Once the charge-sheet is submitted by police under S. 173 Cr. P. C. after completion of investigation and cognizance thereon is taken by the Magistrate, Section 167, Cr. Once the charge-sheet is submitted by police under S. 173 Cr. P. C. after completion of investigation and cognizance thereon is taken by the Magistrate, Section 167, Cr. P. C. does not become any more attracted for detention of the accused. After submission of charge-sheet on completion of investigation by police and taking of cognizance thereon by court, Section 309, Cr. P. C. is however attracted if further detention of the accused becomes necessary. In this connection, we may take note of Sub-Section (2) of Section 309, Cr. P. C. the material portion of which, necessary for our present purpose, is re-produced below :"s. 309 (2 ). If the court, after taking cognizance of an offence or commencement of trial, finds it necessary or advisable to postpone the commencement of, or adjourn, any 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; provided that no Magistrate shall remand an accused person to custody under this Section for a term exceeding fifteen days at a time"; (Emphasis supplied)it is therefore evident that remand under Section 309, Cr. P. C. is not available before cognizance of the offence is taken by the court. Now in a police report case the question of taking cognizance does not arise till the police submit charge-sheet after completion of investigation. Under the old Criminal Procedure Code of 1898, since repealed by the new Criminal Procedure Code of 1973, in Section 344 containing provisions corresponding to Section 309 of the new Code, the words 'after taking cognizance of an offence, or commencement of trial", were not there as a result of which remand under S. 344 of the old Code was available even during the continuance of the police investigation. In Section 167 of the old Code, corresponding to Section 167 of the new Code the maximum period of detention (permissible under the said Section of the old Code) was prescribed as fifteen days and therefore if further detention beyond the period of fifteen days was necessary during police investigation in any particular case such detention could be made by taking recourse to Section 344 of the old Code. In Section 167 of the new Code the permissible period of detention however has been enlarged up to ninety days or sixty days depending upon the nature of the offence, but at the same time this is also to be noticed that the applicability of Section 309 of the new Code is attracted only subsequent to the taking of cognizance of an offence or commencement of trial, and not to any earlier stage, say, during police investigation unlike what was possible under Section 344 of the old Code. ( 6 ) THE question whether the Magistrate before whom a person arrested under S. 104 of the Customs Act is produced can exercise the power of remand in respect of such person and whether Section 167, Cr. P. C. is attracted to such a case, as has been raised in this criminal revision, has been considered earlier by different High Courts on different occasions, but there has been a sharp divergence of opinion in this matter as a result of which the judicial decisions on this point are not uniform. In the present case before me it has been argued by Mr. Ghosh that apart from S. 167, Cr. P. C. the Magistrate has no other power, far less any inherent power to exercise the power of remand in respect of a person arrested and produced before him under S. 104 of the Customs Act and therefore whenever a person is produced under arrest before a Magistrate under the said Section and his prayer for bail is rejected he can be remanded to judicial custody, as is very often done, by exercising the power under S. 167 (2), Cr. P. C. and therefore S. 167, Cr. P. C. or for that matter Sub-Section (5) of that Section also is attracted to a proceeding covered by the Customs Act. In this connection, Mr. Ghosh also referred to Sub-Section (2) of S. 4 of the Code of Criminal Procedure which runs thus :"s. 4 (2 ). Trial of offences under the Indian Penal Code and other laws.- 1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. Ghosh also referred to Sub-Section (2) of S. 4 of the Code of Criminal Procedure which runs thus :"s. 4 (2 ). Trial of offences under the Indian Penal Code and other laws.- 1) All offences under the Indian Penal Code shall be investigated, inquired into, tried and otherwise dealt with according to the provisions hereinafter contained. 2) All offences under any other law shall be investigated, inquired into, tried and otherwise dealt with according to the same provisions but subject to any enactment for the time being in force regulating the manner or place of investigating, inquiring into, trying or otherwise dealing with such offences. "it has been argued by Mr. Ghosh that since the Customs Act is silent as to how a person arrested and produced before the Magistrate under S. 104 of the Customs Act is to be dealt with by the Magistrate, Sub-Section (2) of S. 4, Cr. P. C. will come into play as a result of which Section 167 (2), Cr. P. C. will be attracted and if Sub-Section (2) of S. 167, Cr. P. C. is attracted Sub-Section (5) of S. 167 will also be attracted as a necessary corollary. As I have already mentioned the question as to whether the Magistrate has any power to direct for remand of a person arrested and produced under S. 104, Customs Act and whether S. 167, Cr. P. C. is attracted in such a case has been considered by different High Courts on different occasions which I shall presently refer to. ( 7 ) THE Gujarat High Court in N. H. Dave, Inspector of Customs v. Md. Akhtar Hossain (Criminal Application No. 585 of 1982),dealt with the question whether the Magistrate has the power of remand under S. 437, Cr. P. C. in respect of a person produced before him under arrest under S. 104 of the Customs Act. A relevant portion of the said decision of the Gujarat High Court has been re-produced in paragraph-16 of the decision of the Kerala High Court in Superintendent, Customs, CIU, Cochin v. P. K. Ummerkutty, 1983 Cri LJ 1860. P. C. in respect of a person produced before him under arrest under S. 104 of the Customs Act. A relevant portion of the said decision of the Gujarat High Court has been re-produced in paragraph-16 of the decision of the Kerala High Court in Superintendent, Customs, CIU, Cochin v. P. K. Ummerkutty, 1983 Cri LJ 1860. The Gujarat High Court in the said decision in N. H. Dave came to the conclusion on analysis of the relevant provisions of law that the Magistrate before whom a person is produced under arrest under Section 104 of the Customs Act has the power to commit such person to judicial custody. In this connection, the Gujarat High Court made the following observation :"unless the provision contained in Section 104 of the Customs Act to arrest the person and to produce him before the Magistrate is to be considered to be meaningless, purposeless and a futile exercise undertaken for no purpose and unless we shut our eyes to Section 4 (2) and Section 437, no other view is possible". The Patna High Court in Nagendra Prasad v. State, 1987 Cri LJ 215 also took a similar view as held by the Gujarat High Court about the power of the Magistrate to direct for remand under S. 437, Cr. P. C. in respect of a person arrested and produced before him under S. 104 of the Customs Act. It was also observed therein that whether or not a person arrested by an officer under S. 104 of the Customs Act can be characterised as an accused, he would certainly fall within the ambit of the expression 'suspected of the commission of any non-bailable offence' and the procedure as to bails and bonds in Chapter-XXXIII would be attracted in such a case of arrested person. It was observed in paragraph-7 of the reported judgment that :"thus there is no doubt or dispute in regard to the proposition that Sections 436 and 437 of the Code of Criminal Procedure would be attracted by virtue of the provisions contained in Sub-Section (2) of Section 4 of the Code". It however seems that the Patna High Court in Nagendra Prasad held that S. 167 of the Code of Criminal Procedure was not applicable to a case where a person is arrested and produced before a Magistrate under S. 104 of the Customs Act. It however seems that the Patna High Court in Nagendra Prasad held that S. 167 of the Code of Criminal Procedure was not applicable to a case where a person is arrested and produced before a Magistrate under S. 104 of the Customs Act. ( 8 ) THEN we have two decisions of the Kerala High Court on the matter. Both are the decisions of the same learned single Judge, namely U. L. Bhat, J. The first of these two decisions is Superintendent, Customs CIU, Cochin v. P. K. Ummerkutty reported in 1983 Cri LJ 1860. In the said decision the learned Judge of the Kerala High Court agreeing with the decision of the Division Bench of the Gujarat High Court in N. H. Dave v. Md. Akhtar Hussain (1982 (2) 23 Guj LR 792) held that by virtue of S. 4 (2) of the Code of Criminal Procedure, the person arrested by a competent customs officer in regard to an offence under the Customs Act and produced before the Magistrate under S. 104 (2) of the said Act has to be dealt with according to Section 437 of the Code of Criminal Procedure and the Magistrate dealing with such person arrested and produced under S. 104 of the Customs Act has power to commit him to custody. The Kerala High Court in that decision however disagreed with the decision of the Delhi High Court in Dalam Chand Baid v. Union of India, 1982 Cri LJ 747 which I shall discuss later. The second decision of the Kerala High Court is M. K. Ayoob v. Superintendent, Customs, CIU, Cochin, 1984 Cri LJ 949. In that decision it was held that the provisions in Sub-Sections (2) and (3) of S. 167 of the Code of Criminal Procedure would apply to persons arrested under S. 104 (1) of the Customs Act and produced before a Magistrate under S. 104 (2) of the said Act and the benefit of the proviso to S. 167 (2) of the Code was available to them and in that view of the matter, held further that after the expiry of the period mentioned in S. 167 (2), Cr. P. C. the concerned persons under detention were entitled to be released on bail if no complaint under the Customs Act had been filed against them in the meantime. P. C. the concerned persons under detention were entitled to be released on bail if no complaint under the Customs Act had been filed against them in the meantime. In the said decision of the Kerala High Court it was also held by the learned Judge in paragraph-7 that in respect of a person arrested and produced under S. 104 of the Customs Act, the power to order remand and detention in such custody as the Magistrate would deem fit was implicit in S. 437 of the Code, but the said Section did not lay down any procedure or guideline for passing an order of remand. In paragraph-8 thereof the learned Judge observed that the controls, fetters and guidelines of the provisions of S. 167 (2) and (3) must be read into the framework of S. 437 of the Code. In the light of Sub-Section (2) of S. 4 of the Code of Criminal Procedure it was held in that decision of the Kerala High Court that in the absence of any provisions of the Customs Act touching any such matter as mentioned in S. 4 (2) of the Code, the provisions of the Code would apply and that remand or detention of an arrested person, not being provided by the provisions of the Customs Act, must be governed by the provisions of the Code and it would therefore follow that the provisions of Sub-Sections (2) and (3) of S. 167 of the Code must apply in the case of a person arrested under the Customs Act and produced before a Magistrate (vide, para-10, ibid ). It was further observed by the learned Judge, in para-11 of the said decision in N. K. Ayoob that in relation to a person arrested under the Customs Act, the provisions of S. 167 of the Code of Criminal Procedure must be read suitably, that is, reference to the 'officer-in-charge' of a police station' must be read as 'customs officer' and that this view is strengthened by the provision in Sub-Section (3) of S. 104 of the Customs Act also. As we have already noticed, Sub-Section (3) of S. 104 of the said Act only provides that the officer of customs arresting a person shall have the same powers and be subject to the same provisions as the officer-in-charge of a police station has and is subject to under the Code, for the purpose of releasing such person either on bail or otherwise. When Sub-Section (3) of S. 104 specifically confers only the limited power of releasing an arrested person as an officer-in-charge of a police station can do under the Criminal Procedure Code, it is very difficult to agree with the observation of the Kerala High Court that Sub-Section (3) of S. 104 of the Customs Act strengthens the view that 'customs officer' must be read in place of 'officer-in-charge of a police station' as occurring in S. 167 of the Code. On the contrary the specific power given to a customs officer under Sub-Section (3) of S. 104 of the Act for the purpose of releasing a person on bail or otherwise by expressly referring to the power of the officer-in-charge of a police station under the Code as a measure of the power of the customs officer in respect of the matter, rather clearly indicates that other powers and exercises available under the Code to an officer-in-charge of a police station including those referable under S. 167, Cr. P. C. are not available to a customs officer as a matter of course. ( 9 ) WE have also a decision of a Division Bench of this Court in Sankarlal v. State of West Bengal, 1986 Cri LR 19. In the said decision the decisions of Delhi High Court in Dalam Chand Baid , of the Kerala High Court in Ummerkutty and M. K. Ayoob as well as of the Gujarat High Court in N. H. Dave were referred to, and then the Division Bench of this court in the said decision in Sankarlal (supra) observed that considering the various decisions and the provisions of S. 104 of the Customs Act the Court was convinced that whenever a Magistrate was expressly authorised to grant bail to an accused he had by necessary implications the right to refuse bail and to order him to be taken into custody. We have also a decision of a Single Bench of the Madras High Court in Senior Intelligence Officer, D. O. R. I. , Madras v. M. K. S. Abu Bucker, 1990 Cri LJ 704. In that decision it has been held that the Magistrate has the power to remand a person produced before him in accordance with the S. 104 of the Customs Act by virtue of the powers of remand under S. 167 (2) and (3) of the Code and could further exercise the powers under S. 437 of the Code. Regarding the power of remand by a Magistrate in a customs case, the learned Judge also recorded in paragraph-28 of the decision that his Lordship was in respectful agreement with the views expressed by the High Courts of Kerala and Gujarat and the Full Bench decision of the Delhi High Court in Union of India v. O. P. Gupta. ( 10 ) WE will now take notice of the decisions of the Delhi High Court. The first decision of the Delhi High Court in the matter is the decision of a Division Bench of that court in Dalam Chand Baid v. Union of India, 1982 Cri LJ 747. There a person by name Dalam Chand Baid was suspected to have committed an offence punishable under the Foreign Exchange Regulation Act, 1973. He was arrested and produced before the Magistrate and his bail application was rejected and he was remanded to judicial custody repeatedly. It may be mentioned here that the provisions of S. 35 of the Foreign Exchange Regulation Act, 1973 are similar to those under S. 104 of the Customs Act. The court in that decision noticed that there was no provision in the Foreign Exchange Regulation Act or the Code conferring power to pass an order of remand on a Magistrate in such a case and came to the conclusion that the Magistrate had no power to remand. At the same time, the Court also took the view that S. 437 of the Code would not imply a power to order remand. This decision of the Division Bench of the Delhi High Court in Dalam Chand was however subsequently overruled by a majority decision of a Full Bench of the same court in Union of India v. O. P. Gupta (Criminal Writ Nos. 116 and 104 of 1984, judgment dated 19-7-1985, unreported ). This decision of the Division Bench of the Delhi High Court in Dalam Chand was however subsequently overruled by a majority decision of a Full Bench of the same court in Union of India v. O. P. Gupta (Criminal Writ Nos. 116 and 104 of 1984, judgment dated 19-7-1985, unreported ). The majority decision in the case of O. P. Gupta was the decision of Jogeshwar Dayal and Malik Sharief-Ud-Din, JJ. Charanjit Talwar, J. dissenting. The majority decision in O. P. Gupta held that S. 437, Cr. P. C. did not confer on the Magistrate any implied power of remand but held that by the application of S. 4 (2) of the Code the Magistrate had power under S. 167 (2) of the Code to authorise detention of a person produced under arrest under S. 104 of the Customs Act and/or S. 35 of the Foreign Exchange Regulation Act. But in the latest judgment of a larger Bench of 5 Judges in Deepak Mahajan v. Director of Enforcement, 1991 Cri LJ 1124 the majority view held by the Delhi High Court is that S. 437 of the Code of Criminal Procedure does not confer implied power of remand on a Magistrate and that the Magistrate has also no power under S. 167 (2) of the Code of Criminal Procedure to commit to custody a person produced before him under S. 104 of the Customs Act. It may be mentioned that Charanjit Talwar and Malik Sharief-Ud-Din, JJ. who were members of the earlier Full Bench deciding O. P. Gupta were also members of the later Full Bench deciding Deepak Mahajan. ( 11 ) CHARANJIT Talwar, J. in Deepak Mahajan (supra) rightly noticed in paragraph-5 of the said decision that the word 'remand' does not occur either in Section 167 (2) or in Section 437 of the Code and that the said word is mentioned only in Section 309 of the Code. The learned Judge also took note of the meaning of the word 'remand' which according Webster Dictionary is 'to send a person charged with a crime back into custody by a court order'. The learned Judge also recorded in the said paragraph-5 of the decision that the courts have also held 'remand' to connote re-committal to custody of a person who has been brought up in custody. The learned Judge also recorded in the said paragraph-5 of the decision that the courts have also held 'remand' to connote re-committal to custody of a person who has been brought up in custody. In paragraph-24 of the said decision Charanjit Talwar, J. observed that as far as the applicability of Section 437 by virtue of Section 4 (2) of the Code is concerned, there can be no dispute that it is applicable when the arrested person is in custody of the customs officers and on production before the Magistrate, bail can be sought by him only under this provision. The learned Judge, it seems, however, did not agree with the view expressed by the Gujarat, Patna and Kerala High Courts regarding the power of remand. As regards the observation in the decision of the Kerala High Court that in relation to a person arrested under the Customs Act the provisions of S. 167 of the Code must be read suitably, i. e. , reference to 'officer-in-charge of a police station' must be read as 'customs officer'. Charanjit Talwar, J. in paragraph-75 of the decision in Deepak Mahajan observed as follows :"thus the doctrine of mutatis mutandis though not referred to in the judgment was applied by necessary or suitable changes as it was found that inquiry by the customs officer under the Customs Act was compatible with investigation by the police officer under the parallel provision of Chapter-XII of the Code. With respect the very basis for suitably changing an expression in the Code for the one in the Customs Act by the Kerala High Court is wrong in view of the decision of the Supreme Court in Ramesh Mehta's case. The law of the land is that a customs officer is not a police officer; his status is that of a revenue officer. He is not authorised to investigate commission of an offence triable by a Magistrate; he holds an inquiry into the infringement of provisions of the Customs Act. It seems that Ramesh Mehta's case was not brought to the notice of the Kerala High Court suit as it was not brought to the notice of the Gujarat High Court in N. H. Dave's case (supra)". It seems that Ramesh Mehta's case was not brought to the notice of the Kerala High Court suit as it was not brought to the notice of the Gujarat High Court in N. H. Dave's case (supra)". In paragraph-79 of the said decision in Deepak Mahajan, Charanjit Talwar, J. also made the following observation : "in my considered opinion the respondents are in fact seeking a declaration from this court that the powers of investigation into a criminal offence are conferred by law on customs officers and officers of the Directorate of Enforcement and consequently it be recognized that provisions of S. 167 of the Code are attracted when they produce the arrested person before a Magistrate. The position of such a person vis-a-vis an officer of customs has been clearly described by the Supreme Court in the case of Ramesh Chander Mehta (supra ). It has been settled that the person arrested at that stage of the customs officer is not an accused within the purview of the Code and that the officer concerned is not investigating into commission of an offence triable by a Magistrate. I may note that under some enactments such a power has been granted to public servants who are strictly speaking not police officers in broader sense. For instance an Excise Officer under the Central Excises and Salt Act and an officer of the Railway Protection Force under the Railway Property (Unlawful Possession) Act, 1966 have been given limited powers of a Station House Officer to investigate an offence. The power has been conferred by law and those officers investigate offences under Chapter-XII of the Code of Criminal Procedure. The Customs Officers and Enforcement Officers have advisedly not been given that power under S. 104 of the Customs Act or under S. 35 of the FERA as they are not to investigate commission of offences triable by a Magistrate, though they have been given a limited power of the officer-in-charge of a police station to grant bail or not to grant bail and nothing more". The learned Judge has conceded that a person produced before a Magistrate under S. 104 of the Customs Act comes within the applicability of S. 437 of the Code regarding grant or refusal of bail by virtue of S. 4 (2) of the Code, but at the same time has refused to concede for reasons discussed by his Lordship that the Magistrate has any power of remand either under S. 437 or under S. 167, Cr. P. C. This leads to, I must say with great respect, a very queer situation. In the event bail is refused by the Magistrate under S. 437, Cr. P. C. to a person produced under arrest under S. 104 of the Customs Act the Magistrate has, of necessity, to pass some order regarding the custody of the person whose bail he refuses. After refusal of the bail the Magistrate certainly cannot say that he does not know as to where the person whose prayer for bail is rejected by him is to be kept detained or sent. The very purpose of producing the arrested person before the Magistrate will be totally frustrated leading to a chaotic situation if it is to be held, as it seems to have been held by Charanjit Talwar, J. , that the Magistrate cannot pass any order regarding the custody or detention of the person concerned after refusal of bail. This is an impractical proposition and the court must not interpret the law in such a way as to bring about an impractical and chaotic situation or a deadlock. Charanjit Talwar, J. did not try to answer the question or to suggest any practical solution as to what is to be done with the person whose prayer for bail is rejected by the Magistrate if the Magistrate has no power anywhere under law to direct for the custody or detention of such person. ( 12 ) ANOTHER Learned Judge, Sunanda Bhandare, J. tried to meet this situation by observing in paragraph 120 in Deepak Mahajan (1991 Cri LJ 1124) (Delhi) (FB) (supra) that when a person is produced before the Magistrate by a customs officer in accordance with Section 104 (2) of the Customs Act, his continuation in custody will be in accordance with law only when the Magistrate passes an order of remand under Section 309 of the Code after taking cognizance of the offence. Since the power of remand under Section 309 of the Code applies only after cognizance is taken, the question still remains as to what is to happen when a person produced before a Magistrate under Section 104 of the Customs Act is refused bail before any complaint is filed and the Magistrate is denied the power of remand under Section 437 or Section 167 of the Code. Sunanda Bhandare, J. also could not or did not offer any solution for the practical problem arising in such a situation. ( 13 ) P. K. Bahri, J. who was also a party to the decision in Deepak Mahajan was also fully conscious of the problem and the solution offered by the learned Judge is that in case for one reason or another the customs officers are not in a position to obtain necessary sanction or prepare the complaint before the expiry of 24 hours after the arrest of the concerned person the customs officers can in that event 'easily make a report to the police station concerned and request the police to obtain necessary permission of the Magistrate for investigating such an offence and remand of such an arrested person can be obtained by the police'. The procedure suggested by the learned Judge, I must say with great respect, is wholly impractical. First, it is almost absurd to expect that the customs officers will be in a position to complete the necessary inquiries, prepare complaint, obtain necessary sanction and submit the complaint before the appropriate court within 24 hours of the arrest of the person concerned. The reason as to why it will be an impossible task to complete the process involving multi-stage activities within such a short time of 24 hours needs no elaboration. The learned Judge was, it seems, fully aware of the difficulties of presenting a petition of complaint after obtaining necessary sanction on completion of inquiry, all within 24 hours, from the time of arrest. The learned Judge was also fully aware that the police cannot investigate any such case because an offence under the Customs Act is non-cognizable. A non-cognizable offence can be investigated by the police only after obtaining necessary permission in that behalf from the Magistrate. The learned Judge was also fully aware that the police cannot investigate any such case because an offence under the Customs Act is non-cognizable. A non-cognizable offence can be investigated by the police only after obtaining necessary permission in that behalf from the Magistrate. The learned Judge has suggested therefore that in case the customs officers cannot file a complaint with necessary sanction within 24 hours of arrest, they may report the matter to the police station and then the officer of the police station may obtain necessary permission from the Magistrate for making an investigation in a non-cognizable case and then can obtain an order of remand of the arrested person from the Magistrate because in that case the police under Section 167, Cr. P. C. would be entitled to pray for remand. This, I must say with respect, is quite an unworkable suggestion, because apart from anything else all these things, namely, reporting to the police station and then obtaining of the magisterial permission by the police to investigate the case and then obtaining a remand order from the Magistrate under Section 167, Cr. P. C. , all within only 24 hours will be an impossibility and at any rate, a practically unworkable procedure. Moreover this procedure apart from being unworkably circuitous and impracticable will be contrary to the intent and mandate of the legislature that an offence under the Customs Act should not be investigated by the police as it has been expressly made non-cognizable. ( 14 ) AS regards the contention that the principle of mutatis mutandis should be invoked by taking recourse to provisions of Section 4 (2) of the Code and that the provisions of Section 167 (1) of the Code should be read with such modifications as are necessary keeping in view the provisions of Section 104 of the Customs Act, 1962 or Section 35 of FERA. Bahri, J. in Deepak Mahajan (1991 Cri LJ 1124) (Delhi) (FB) (supra) observed in paragraph 124 that the doctrine of mutatis mutandis could be invoked only if a particular statute or rule provides for the same and that Section 4 (2) of the Code or provisions of the said special statutes do not anywhere lay down that any provisions of the Code are to be invoked mutatis mutandis while construing any provisions of the special statutes. The learned Judge observed in paragraph 126 (ibid) that it is not possible to countenance the contention that in place of 'police officer' mentioned in Section 167 (1) of the Code we should read the words 'customs officer or enforcement officer' and in place of 'diaries' which the police is legally bound to maintain while investigating into the offences under Chapter XII of the Code we should read the words 'the evidence or material' collected by such officers while holding inquiry under the provisions of the said special statutes. Mr. Ghosh heavily relied on the judgement of R. L. Gupta, J. recording the minority view in Deepak Mahajan (supra ). R. L. Gupta, J. was of the opinion that there was an express power under Section 167 (2) of the Code, or alternatively an implied or implicit power under Section 437 of the Code vested in the Magistrate to remand a person to judicial custody, when such a person is produced before him either under the Customs Act or under the Foreign Exchange Regulation Act. The learned Judge took note of the fact that in the 'objects and reasons' for enacting Section 104 of the Customs Act there was a proposal in clause (iii) which runs thus : " (iii ). In addition to the power to commit an arrested person to jail or order him to be kept in police custody, the Magistrate is being empowered to order the arrested person to be kept in such other custody as he deems fit". The learned Judge also noticed that in regard to the said clause the Select Committee recommended that it being merely a repetition of the provisions of Criminal Procedure Code, 1898 (the old Code) the same should be omitted. The learned Judge drew the conclusion that the recommended clause (iii) was omitted ultimately from the enactment because the provisions were found to be redundant in view of the express provisions of the old Code. This according to the learned Judge gives out the clear legislative intention that Section 167 of the Code would be applicable also to a person produced before a Magistrate under arrest under Section 104 of the Customs Act. This according to the learned Judge gives out the clear legislative intention that Section 167 of the Code would be applicable also to a person produced before a Magistrate under arrest under Section 104 of the Customs Act. This aspect of reading played a significant role in leading R. L. Gupta, J. to persuade himself that Section 167 of the Code is also attracted to an accused produced before a Magistrate under Section 104 of the Customs Act. The learned Judge also took note of the fact that under Section 344 of the old Code an accused could be remanded to custody even during the continuance of the investigation unlike under Section 309 of the new Code, but even then his Lordships construed that what was in the contemplation of the Select Committee was Section 167 of the Code only and not Section 344. Incidentally, it may be mentioned here that when the Select Committee prepared that report and when the Customs Act, 1962 was enacted the Criminal Procedure Code, 1898 was in force and the new Code, namely, the Criminal Procedure Code, 1973 was nowhere there in the picture. Charanjit Talwar, J. however, viewed the matter from a different angle regarding the report of the Select Committee. The learned Judge, by way of recapitulation in paragraph 71 in Deepak Mahajan (supra) took note of the fact that in 1962 when the Customs Act was enacted there were two provisions of the Code, namely, Sections 167 and 344 of the old Code which empowered the Magistrate to pass a remand order even before taking cognizance of the offence. The learned Judge was of the opinion that Section 167 and Section 344 of the old Code were the reason for the Select Committee to hold that the suggested sub-clause (iii) was a repetition. In other words, according to the learned Judge, Section 167 of the old Code was not the sole provision under which the Magistrate could pass remand order under the old Code and Section 344 was also available for remand during investigation and on considering both the Sections the Select Committee felt that there would be repetition by enacting the provisions of the proposed sub-clause (iii ). ( 15 ) CHARANJIT Talwar, J. also observed in that connection thus in paragraph 71 (ibid) :"anyhow the opinion of the Select Committee in either interpreting the provisions of Section 104 of the Customs Act or for omitting sub-clause (3) of the Bill cannot be gone into as there is no ambiguity whatsoever in the enacted provisions. The resort can be had to the opinion of a Select Committee for interpreting any provision of a statute only in case there appears any ambiguity in the statute or where the language of the statute is likely to lead to two interpretations". With respect I am in full agreement with the above observation of the learned Judge. In the present case, as I will discuss later, there is no ambiguity as to whether Section 167 is attracted on the production of a person under arrest before a Magistrate under Section 104 of the Customs Act and that being so there is no question of referring to the report or opinion of the Select Committee. In interpreting any statutory provision reference to extrinsic materials cannot be made where there is no ambiguity in the concerned provisions or where the ordinary meaning of the words and expressions used leads to no absurdity or inconsistency. Moreover, as we have seen, the opinion of the Select Committee in the matter is also not very exact or definite as to what were the existing provisions of the Code which the Select Committee had in view while forming the opinion. As we have seen, the two learned Judges had difference of opinion as to what was or were the exact provisions of the Code that prompted the Select Committee to express the concerned opinion. In that view of the matter one has to be very careful in applying the opinion of the Select Committee in the matter of interpretation of a statutory provision where the opinion of the Select Committee itself requires interpretation or is capable of different interpretations. However, as I have already mentioned, in the present matter practically there is no ambiguity or uncertainty so far as the provisions of the Code and the Act are concerned and therefore there is no occasion to look to the opinion of the Select Committee. The learned Judge, R. L. Gupta, J. was conscious that the proposed application of Section 167 (2), Cr. The learned Judge, R. L. Gupta, J. was conscious that the proposed application of Section 167 (2), Cr. P. C. to a case where a person was produced under arrest before a Magistrate under the Customs Act was not free from difficulties and that is why the learned Judge in paragraph 151 in Deepak Mahajan (1991 Cri LJ 1124) (Delhi) (FB) (supra) had to observe thus in search of an alternative approach : "let us presume now for the sake of argument that there is some lacuna in these Acts vis-a-vis Section 167 (2) of the Code about the powers of the Magistrate to permit such custody as he deems fit". ( 16 ) IN paragraph 154 at page 1166 of Deepak Mahajan (supra) R. L. Gupta, J. observed that the Magistrate's powers under Section 437 are not limited or controlled by Section 167 and that implied powers of the Magistrate under Section 437 to remand an accused to custody are to be seen only by keeping aside the provisions of Section 167 and that too, in case of offences under the other Acts and not of offences under the Indian Penal Code. The learned Judge there observed further : "so far as the offences under the Penal Code are concerned, there are specific powers of the Magistrate to remand an accused to custody under Section 167". In paragraph 155 in Deepak Mahajan (1991 Cri LJ 1124) (Delhi) (FB) (supra) R. L. Gupta, J. also observed that implied power is not the same thing as the inherent power. There is no doubt that a Magistrate has no inherent power of remand as laid down by the Supreme Court in Natabar Parida v. State of Orissa, (1975) 2 SCC 220 , but absence of inherent power does not necessarily mean absence of implied power. In paragraph 156 (ibid) R. L. Gupta, J. finally observed :"therefore, taking into consideration the total perspective of this case, I am of the opinion that firstly there is an express power under Section 167 (2) of the Code, or alternatively, an implied or implicit power under Section 437 of the Code vested in the Magistrate to remand a person to judicial custody, when such a person is produced before him either under the Customs Act or under the Foreign Exchange Regulation Act". ( 17 ) ON behalf of the petitioner reliance has been placed in the observation made by Sarkaria, J. in para 22 of the decision in Balkishan v. State of Maharashtra, AIR 1981 SC 379 : (1980 Cri LJ 1424) to the effect that the legislature's main purpose for passing the Railway Property (Unlawful Possession) Act, 1966, was to invest powers of investigation and prosecution for offences relating to railway property in the Railway Protection Force in the same manner as in Excise and Customs. In my opinion the said observation does not necessarily lead to the conclusion that the customs officer has the same power of investigating a customs offence by following the same procedures of the Criminal Procedure Code which a police officer has in investigating a cognizable offence under the provisions of the Criminal Procedure Code. Incidentally, it may be mentioned here that Section 8 (2) of the Railway Property (Unlawful Possession) Act, 1966 expressly provides that in proceeding to enquire into the charge against a person arrested by an officer of the Railway Protection Force for an offence punishable under the R. P. (U. P.) Act, the officer of the Force may exercise the same powers and shall be subject to the same provisions as the officer-in-charge of a police station may exercise and is subject to under the Code of Criminal Procedure when investigating a cognizable case. As we have seen, no such general provision for applying the provisions of the Code of Criminal Procedure relating to investigation by the officer-in-charge of a police station has been enacted in the Customs Act, 1962 unlike the R. P. (U. P.) Act. Even then the Supreme Court felt that an RPF Officer making an inquiry relating to an offence under the Act cannot be equated with a police officer making an investigation under the Code. True, the Madras High Court in Senior Intelligence Officer, D. O. R. I. Madras (1990 Cri LJ 704) (supra) quoted with emphasis in paragraph 23 the observation of Sarkaria, J. made in Balkishan v. State of Maharashtra, AIR 1981 SC 379 : (1980 Cri LJ1424) that the main purpose of passing the Railway Property (Unlawful Possession) Act, 1966, was to invest powers of investigation and prosecution of offences relating to Railway Property in the Railway Protection Force in the same manner as in Excise