TIOL-DDT 295
02 02 2006
Thursday

First of all certain issues are to be clearly understood. First point is who can be arrested?

Section 104 of the Customs Act dealing with arrests reads as

Power to arrest. – (1) If an officer of customs empowered in this behalf by general or special order of the Commissioner 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.

(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 (5 of 1898).

 (4) Notwithstanding anything contained in the Code of Criminal Procedure, 1898 (5 of 1898), an offence under this Act shall not be cognizable.

So under the Customs Act, any person can be arrested if the officer has reason to believe that the person is liable for punishment under the Act.

Similarly section 13 under Central Excise reads,

Power to arrest.-  (1) Any Central Excise Officer duly empowered by the Central Government in this behalf may arrest any person whom he has reason to believe to be liable to punishment under this Act.

(2) Any person accused or reasonably suspected of committing an offence under this Act or any rules made thereunder, who on demand of any officer duly empowered by the Central Government in this behalf, refuses to give his name and residence, or who gives a name or residence which such officer has reason to believe to be false, may be arrested by such officer in order that his name and residence may be ascertained.

Under Central Excise also any person who is reasonably believed to be liable for punishment under the Act can be arrested. Further in Central Excise a person refusing to give his name and residence can also be arrested.

Now the big question is : Does the Central Excise / Customs officer need a warrant to arrest?

To answer this question, we need to understand another concept – cognizable and non cognizable offence. Section 2(l) of the Cr.P.C defines non cognizable offence as,

(l)"non-cognizable offence" means an offence for which, and "non-cognizable case" means a case in which, a police officer has no authority to arrest without warrant;

As per Section 104(4) of the Customs Act and Section 9A of the Central Excise Act, not withstanding anything said in the Cr.P.C, an offence under the Customs Act or the Central Excise Act is non cognizable. And non cognizable offences, as we have seen are offences for which a police officer cannot arrest without warrant. As the offences under Customs and Excise are non cognizable, the question is “can a Customs officer arrest without warrant?”

 We have been confronted with this question recently by a concerned assessee. Referring to our story on “Killer Kolkotta Customs” which we carried more than four months ago, the netizen asked us,

You say that the Customs officers have the power to arrest. Yes, they do ; but only AFTER they get a warrant of arrest from a Magistrate. If there are any doubts in this regard, please see the Customs Act (and the Excise Act) which clearly state that notwithstanding anything contained in the Act,all offences are non-cognizable ; then, please see the CrPC, which says that for all offences that are non-cognizable, arrest can only be carried out after obtaining a warrant from a Magistrate. And in support of this, pls see the judgement of the Allahabad High Court in Rajni vs. UOI (2003-TIOL-134-HC-ALL-CX) in which the High Court has clearly stated that no warrant from Magistrate = no power to arrest.The Deptt went into appeal aganst this judgement to the Supreme Court, who has refused to grant an ad interim stay to the Deptt against the operation of the judgement of the Allahabad High Court.

So, in light of this, why allow further propagation of the myth that they have the powers to arrest (implying, arrest without warrant)?

A concerned assessee.

First of all we would like to clarify that the Rajni case did not hold that the Central Excise officers have no power to arrest without warrant. In fact it refused to quash the arrest and refused to issue a direction to the authorities not to arrest the petitioner. The Court actually observed, “it is apparent that the authorities have no power under the Excise Act to arrest anybody except in the cases as prescribed under Section 13 of the said Act, as enumerated in sub-clause (2) of Section 13 of the said Act. On completion of the en-quiry they have also power to file a complaint and pray before the Court for action in accordance with law.”

So the position is that offences under excise and customs are non cognizable and for a non cognizable offence, a police officer cannot arrest without a warrant. But here lies the trick. A customs/Central Excise officer being not a police officer is not hit by this bar and he can happily arrest without a warrant. This position has been nicely elucidated by the Punjab and Haryana High Court in SUNIL GUPTA Versus UNION OF INDIA in Civil Writ Petition No. 1647 of 1999, decided on 7-4-1999. A few extracts from the classic judgement will make the issue clear.

++ Section 9A introduces a fiction. As a result, the offences under Section 9 are deemed to be non- cognizable. Section 13 authorises “any Central Excise Officer duly empowered by the Central Government in this behalf” to “arrest any person whom he has reason to believe to be liable to punishable under this Act.” This provision embodies a substantive power and authorises the competent officer to arrest a person if he has some reason to believe that the person is liable to be punished under the Act.

++ A substantive power to arrest has been conferred under Section 13.

++ Section 18 requires that arrest made under this Act shall be carried out in accordance with the provisions of the Code of Criminal Procedure......” Thus, no arrest can be made by an officer of the Central Excise except by following the procedure applicable to the cases involving non-cognizable offences under the Code of Criminal Procedure. Is it so?

++ In terms of the provisions of Section 2(c) of the Code of Criminal Procedure, a cognizable offence is one “for which........ a police officer may..... arrest without warrant.” Similarly, according to Section 2(1), a non-cognizable offence is that “for which ......... a police officer has no authority to arrest without warrant.” Despite the fact that punishment for offences under Section 9 can extend to imprisonment for seven years, these are deemed to be non-cognizable within the meaning of Code of Criminal Procedure. When the provisions are literally construed, the implication is merely that a police officer shall not be able to arrest a person who has committed an offence under Section 9 without a warrant. However, the provision does not say that an “Excise Officer shall be debarred from arresting a person who has committed an offence under Section 9 without a warrant.” Section 9A merely imports the provision of Section 2(1) of the Code of Criminal Procedure into the Act and imposes a restriction on the power of the police officer. The authorised officer of the Central Excise being different from a police officer, such an embargo has not been placed by the Parliament on him. Otherwise, the legislature could have clearly said that no person who has committed an offence under Section 9 shall be arrested without a warrant by any one. It does not say so. The omission is not without significance.

++ Section 13 embodies a substantive power. It confers the power to arrest. The procedural safeguards have been protected by Section 18. This provision merely regulates the exercise of power under Section 13. It only provides that the searches and arrests under the Central Excise Act “shall be carried out in accordance with the provisions of the Code of Criminal Procedure.....” In other words, an officer of the Central Excise shall make the arrest in ‘the manner laid down in Section 46 of the Code of Criminal Procedure...... He “shall actually touch or confine the body of the person to be arrested.....” In case of resistance, the officer of the Central Excise “may use all means necessary to effect the arrest.” The persons arrested “shall not be subjected to more restraint than is necessary to prevent his escape. In a nut shell, the procedural protection contained in the Code of Criminal Procedure has been guaranteed even in case of arrests and searches under the Central Excise Act, 1944. No more.

++ Is an arrest without warrant barred? On an examination of the provisions, we are of the view that it is not so.. We hold that an officer of the department of Central Excise who has been duly authorised by the Central Government is not debarred from arresting a person without a warrant when he has reason to believe that the person is liable to be punished under the Central, Excise Act, 1944.

That’s all about it. It is amply clear that as Customs and excise officers are not police officers they can arrest without warrant.

What happens after the arrest?

DDT would like to pose two questions for your weekend entertainment.

1. What is a non bailable offence? And is an offence under Customs/excise non bailable?

2. Who can grant bail for an offence under these statutes?

Please mail your answers latest by Sunday evening to vijaywrite@taxindiaonline.com

Greek and Latin - DDT's new feature

Today’s phrase: desuetude. A learned friend asked me to give pronunciation of the words and phrases covered in this feature – They are to be pronounced in a court – after all. While I am not sure of the pronunciation of many English words, let alone Latin, I will try to give the pronunciation whenever I am reasonably sure. This word is pronounced as ‘des wi tyud’ and it is legal process by which through disobedience and lack of enforcement over a long period of time, a statute may lose its force without express or implied repeal by the Government. In a recent case in the Delhi High Court it was argued that the bar of employing women in places where liquor was consumed was desuetude. It is what happens to un-repealed laws when they become obsolete.

Now have a look at Section 20 of the Factories Act,

SPITTOONS - (1) In every factory there shall be provided a sufficient number of spittoons in convenient places and they shall be maintained in a clean and hygienic condition.

(2) The State Government may make rules prescribing the type and the number of spittoons to be provided and their location in any factory and provide for such further matters relating to their maintenance in a clean and hygienic condition.

(3) No person shall spit within the premises of a factory except in the spittoons provided for the purpose and a notice containing this provision and the penalty for its violation shall be prominently displayed at suitable places in the premises.

(4) Whoever spits in contravention of sub-section (3) shall be punishable with fine not exceeding five rupees.
 
For the sceptic there remains only one consolation: if there should be such a thing as superhuman law it is administered with subhuman inefficiency.

Eric Ambler

Until tomorrow with more DDT

Have a nice day.

Mail your comments to vijaywrite@taxindiaonline.com