Roshan Beevi

MANU/TN/0028/1983
Equivalent Citation: 1984(15)ELT289(Mad.)

IN THE HIGH COURT OF MADRAS
W.P. Nos. 5016, 5244, 6192, 6193 and 6800 of 1983
Decided On: 09.11.1983
Appellants: Roshan Beevi and Ors.
Vs.
Respondent: Joint Secretary to Government of Tamil Nadu and Ors.
Hon'ble Judges/Coram:
K.M. Natarajan, S.A. Kader and S. Ratnavel Pandian, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: M.R.M. Abdul Kareem, M.M. Abdul Razack, K.A. Jabbar, M.
Abdul Nazeer, P.M. Jummakhan, P.M. Prem Nazirkhan, Rangavajjula Krishnamurthi and A.A.
Lawrance, Advs.
For Respondents/Defendant: Public Prosecutor
Subject: Criminal
Subject: Law of Evidence
Acts/Rules/Orders:
Constitution of India - Article 20(3), Constitution of India - Article 21, Constitution of India Article 22, Constitution of India - Article 22(2), Constitution of India - Article 226; Indian Penal
Code 1860, (IPC) - Section 99, Indian Penal Code 1860, (IPC) - Section 193, Indian Penal Code
1860, (IPC) - Section 225, Indian Penal Code 1860, (IPC) - Section 228, Indian Penal Code
1860, (IPC) - Section 241, Indian Penal Code 1860, (IPC) - Section 339, Indian Penal Code
1860, (IPC) - Section 342; Code of Criminal Procedure, 1973 (CrPC) - Section 2, Code of
Criminal Procedure, 1973 (CrPC) - Section 36(1), Code of Criminal Procedure, 1973 (CrPC) Section 43, Code of Criminal Procedure, 1973 (CrPC) - Section 45, Code of Criminal Procedure,
1973 (CrPC) - Section 45(1), Code of Criminal Procedure, 1973 (CrPC) - Section 46, Code of
Criminal Procedure, 1973 (CrPC) - Section 160(1), Code of Criminal Procedure, 1973 (CrPC) Section 164, Code of Criminal Procedure, 1973 (CrPC) - Section 167(1), Code of Criminal
Procedure, 1973 (CrPC) - Section 438, Code of Criminal Procedure, 1973 (CrPC) - Section 439;
Indian Evidence Act - Section 24, Indian Evidence Act - Section 25, Indian Evidence Act Section 26, Indian Evidence Act - Section 27
Authorities Referred:
Shorter Oxford English Dictionary; Halsbury's Laws of England, IV Edition, Vol. II, in para 99 at
page 75; Halsbury's Laws of England, Third Edition (1955), Vol. 10, at page 342; Webster's
Third New International Dictionary, Vol. I, at page 121; Stroud's Judicial Dictionary, IV Edition,
Volume I, at page 184; Bouvier's Law Dictionary, 1914 Edition, Vol. I; Dictionary of English Law
(1959) by Earl Jowitt, Vol. I; Wharton's Law Lexicon, 12th Edition (1916); Black's Law
Dictionary, 5th Edition (1979); A Dictionary of Law' by L. B. Curzon (1979); Mitra's Legal and
Commercial Dictionary, Third Edition (1979); Words and Phrases legally defined, Second Edition
(1969), Volume 1, p. 114; New Encyclopaedia Britannica, 15th Edition, Vol. 1, at page 540;
Corpus Juris Secondum, Vol. VI, at page 570; A Hand-Book in Criminal Procedure and the
Administration of Justice" by Alien P. Bristow and John B. Williams; The Criminal Prosecution in
England" by Patrick Devlin, at page 68; Corpus Juris Secondum, Vol. 25,
Case Note:
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O. P. Jindal Global University
Criminal - detention - Articles 20 (3), 21, 22, 22 (2) and 226 of Constitution of India,
Sections 99, 193, 225, 228, 241, 339 and 342 of Indian Penal Code, 1860, Sections 2,
36 (1), 43, 45, 45 (1), 46, 160 (1), 438 and 439 of Criminal Procedure Code, 1973,
Sections 24 to 27 of Indian Evidence Act and Section 104 (1) of Custom Act - whether
detention of any person by Custom Official beyond 24 hours without producing him
before Magistrate violative of Article 22 - Article 22 (2) requires arrester to produce
arrestee before Magistrate within period of 24 hours excluding time necessary for
journey from place of arrest to Magistrate - once person arrested either by Customs
Officer under Section 104 (1) or by any other persons authorised Article 22 (2) would
come into play and anything contrary to that would be violative of Article 22 (2) held, Custom Officers when acting under Customs Act should see that procedural
safeguards which are indispensable essence of liberty of citizen are not impaired in
any manner.
JUDGMENT
Ratnavel Pandian, J.
1. The above five writ petitions under Article 226 of the Constitution of India, have been filed
challenging the legality and validity of the orders of detention in the respective cases, passed
under Section 3(1) of the Conservation of Foreign Exchange and Prevention of Smuggling
Activities Act, 1974 (hereinafter referred to as the COFEPOSA Act).
2. One of the main grounds raised in all these writ petitions on the strength of an observation
made by a Division Bench of this Court, consisting of Balasubrahmanyan, J. and M. N. Moorthy,
J. in Kaiser Otmar v. State of Tamil Nadu, 1981 MLW 158 : 1981 Cri LJ 208 is that the detenu
should be deemed to have been arrested from the moment they were taken into custody by the
Customs officials, even if it be under the guise of any enquiry or interrogation, and that their
subsequent custody with the Customs Department without being produced before the
Magistrate within 24 hours as envisaged in Article 22(2) of the Constitution of India, would
amount to an illegal detention and any statement or statements recorded from those persons
by the Customs officials during this prolonged period of custody should be held to have been
made by the detenues not on their own volition or free will and hence such statements cannot
be made use of by the detaining authorities for drawing the requisite subjective satisfaction for
passing the orders of detention.
3. As two of us constituting a Division Bench viewed that the interpretation of the term 'arrest'
and the observation regarding the formal mode of arrest, given by the earlier Division Bench of
this Court in Kaisar Otmar's case 1981 Cri LJ 208 are not in consonance with Section 46,
Criminal P.C. and the view taken by a Full Bench of this Court in Collector of Customs v.
Kothumal, MANU/TN/0218/1967 : AIR1967Mad263 and the decision of a Division Bench of the
Bombay High Court in Harban Singh v. State, MANU/MH/0011/1970 : AIR1970Bom79 and that
such an interpretation and observation need reconsideration by a Full Bench of this Court, we
placed the matter before the Honourable the Chief Justice for necessary orders. Accordingly,
this batch of writ petitions have now been referred to this Full Bench.
4. The relevant portion of the judgment in Kaisar Otmar's case 1981 Cri LJ 208 which led to this
reference to this Full Bench, reads thus :"Our legal system does not require that an arrest should be attended with any ritual
of even that it should be ostentatious. It is not necessary that a man in order to get
arrested should be taken prisoner; nor does the law regard as arrest only the
ceremonial hand-cuff or manacle. An authority is said to arrest another man if it
prevents the latter from willing his movements and moving according to his will.
Under enlightened modern conditions it seldom becomes necessary for any police
officer or other authority empowered to make arrests to actually seize or even
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touch a person's body with a view to his restraint. Utterance of a guttural word or
sound, a gesture of the index finger or hand, the sway of the head or even the
flicker of an eye are enough to convey the meaning to the person concerned that he
has lost his liberty."
5. In Kaiser Otmar's case 1981 Cri LJ 208, according to the detenu, he was taken for
interrogation by the preventive officers of the Customs Department on the evening of 15th
January, 1981 and thence forward was under their custody continuously till 4 p.m. on 18-11981 when he was produced before the Chief Metropolitan Magistrate and remanded to judicial
custody, after 70 hours from the time of his being taken into custody i.e., his arrest. It was
submitted on behalf of the respondents therein that the detenu was taken into custody on the
15th evening for inquiry and interrogation till 18-1-1981, during which he made a confessional
statement leading to the recovery and seizure of smuggled goods and that he was actually
arrested only at 11 a.m. on 18-1-1981 under Section 104(1) of the Customs Act, and that as
the detenu was produced before the Magistrate on 18-1-1981 itself within 24 hours of the
arrest, the submission made on behalf of the petitioner that there was an illegal detention
violative of Article 22(2) of the Constitution, was not correct. In other words, according to the
respondents, the detenu could not be said to have been 'arrested' within the meaning of the
said term from the moment when he was taken into custody for interrogation. The Bench
rejecting the contention of the respondents and accepting that of the petitioner, held that the
detenu in that case was arrested from the time when he was taken into custody by the customs
officials, i.e., on the evening of 15-1-1981 and kept for a prolonged period in violation of Article
22(2) of the Constitution.
6. In order to answer the reference, the following questions are framed for consideration :
(1) When is a person said to be under arrest ?
(2) Are the terms 'custody' and 'arrest' synonymous ?
(3) Are the customs officials vested with powers under the Customs Act, 1962 to
detain any person for any period and at any place for the purpose of an inquiry,
interrogation or investigation ?
(4) Will the detention of a person by the customs officers for the purpose of inquiry,
interrogation or investigation, amount to an 'arrest' of the said person ?
(5) Is detention of a person by the customs officers for the purpose of inquiry or
interrogation or investigation beyond 24 hours without producing him before a
Magistrate, violative of Article 22 of the Constitution of India ?
7. Mr. Abdul Kareem, learned counsel appearing for the writ petitioners in W. P. Nos. 5016/83
and 5244/83, drew our attention to the various provisions of the Sea Customs Act, 1878 and
the corresponding and other allied provisions of the Customs Act, 1962, as well as the various
Provisions relating to arrest coming under Chapter IV, Cr.P.C., and submitted that the moment
the personal liberty of a person and the freedom of his movement are restrained consequent
upon his being brought under the custody of an authority clothed with the power of arrest, he
should be deemed to have been arrested within the meaning of Section 46, Cr.P.C., and that
though the subject of preventive detention is specifically dealt with in Article 22 of the
Constitution, the requirement of Article 21 has nevertheless to be satisfied and that Sections
107 and 108 of the Customs Act vest an uncontrolled and unbridled power in an arbitrary,
unreasonable and unguided manner, on the executive in implementing these provisions at their
sweet will, which vesting is violative of the principles of natural justice and Article 21, and so
the procedure attending upon such power of detention should conform to the mandate of Article
21 in the matter of fairness, justness and reasonableness and that the moment a person is
arrested under Section 104(1) of the Customs Act, he must, without unnecessary delay, be
taken to a Magistrate and that any prolonged delay in violation of Article 22(2) makes such
detention illegal and hence any statement recorded from such arrested person or persons
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should be held to have been tainted with illegality as having been extorted under duress,
coercion or undue influence and such a statement should not form the basis of the subjective
satisfaction to be drawn by the detaining authority.
8. Mr. P. M. Jumma Khan, learned counsel appearing for the writ petitioner in W.P. Nos.
6192/83 and 6193/83, would adopt the argument advanced by Mr. Kareem.
9. Mr. Rangavajjula, learned counsel appearing for the petitioner in W.P. 6880/83, took us very
meticulously through the various provisions of the Criminal Procedure Code, the Indian penal
Code and the Customs Act and also the various text books written by renowned authors, in
which terms 'arrest' and 'custody' appear, and also referred to various dictionaries with
reference to the meaning of those two terms, and urged that the words 'arrest' and 'custody'
are synonymous and therefore, once a person is taken for inquiry either under S. 107 or under
S. 108, of the Customs Act, such a taking would amount to an arrest and the customs officials
are not at all justified in keeping and detaining a person as taken into custody for over the
statutory period authorised under law, under the guise of inquiry or interrogation. According to
him, the interpretation of the term 'arrest' and the observation of the term 'arrest' in Kaiser
Otmar's case 1981 Cri LJ 208 represent the correct position of law and as such there is no
warrant for reconsideration of the principles laid down therein.
10. The learned Advocate-General, appearing at the instance of this Court, posed three points
as arising for discussion and answered the same stating (1) that the mere questioning of a
person by a customs officer either under Section 107 or under Section 108 of the Customs Act
resulting in a voluntary statement which may ultimately turn out to be incriminatory, is not
compulsion, attracting the application of Section 20(3), because that person, while making that
statement at that stage, is not an accused of any offence; (2) that as Sections 107 and 108 of
the Customs Act provide ample sanction for inquiry or interrogating or investigation by the
officers of the Customs Department without specifying the place and time for such inquiry etc.,
such exercise of the powers is in accordance with the procedure established by law within the
meaning of Article 21 and as such there is no question of any violation of the provisions of
Article 21 of the Constitution, and (3) that to attract Article 22(2) two essential ingredients,
viz., 'arrest' and 'detention in custody' should be satisfied and therefore, the mere custody will
not amount to arrest within its legal sense and as contemplated under Section 46, Cr.P.C.
11. Mr. P. Rajamanickam, the learned Public Prosecutor, appearing for respondents 1 and 2,
counters the submissions made by the learned counsel appearing for the petitioners, inter alia
contending that the mere taking of a person to a place convenient for all for the purpose of
inquiry, interrogation or investigation, will not amount to 'arrest' though there is restraint of
that person. According to him, when a statute becomes impossible of compliance and the duty
imposed by that statute cannot be discharged, the doctrine of implied terms can be invoked and
some auxiliary or incidental power can be permitted to exist lest the statutory provisions would
become a dead letter and hence in an inquiry under S. 107 or Section 108 of the Customs Act,
the authorities concerned can, by the application of the said doctrine, take persons suspected of
having committed any offence to any place at any time for inquiry; interrogation etc., and such
taking in the circumstances and context, would not amount to 'arrest' of the person concerned.
12. Mr. R. Thiagarajan, the learned Senior Central Government Standing Counsel, appearing on
behalf of the third respondent, viz., the Assistant Director, Revenue, Intelligence, Madras,
impleaded as per order of this Court dt. 9-9-1983 made in W.M.P. Nos. 12822 to 12824 of
1983, made reference to the scheme of the Customs Act and stated that a customs officer is
not a police officer and the persons summoned for inquiry either under S. 107 or under S. 108
of the Customs Act is not an accused of an offence and hence at the stage of such an inquiry,
when there is no formal accusation, the mere physical restraint of that person is not an arrest
and in such a case there is no testimonial compulsion. He would further state that as the person
summoned for inquiry does not have the character of an accused, the protection given under
Articles 20(3), 21 and 22(2) of the Constitution cannot be availed of.
13. In support of their respective submissions, the learned counsel appearing for the various
petitioners and the respondents and the learned Advocate-General took us very meticulously
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through a catena of decisions and also drew our attention to various provisions of the Customs
Act, the Code of Criminal Procedure and other allied enactments and certain renowned text
books.
14. Meaning of the term 'arrest' : The term 'arrest' is not defined either in the procedural Acts
or in the various substantive Acts, though Section 46, Cr.P.C., lays down the mode of arrest to
be effected.
15. The word 'arrest' is derived from the French 'Arreter' meaning 'to stop or stay' and signifies
a restraint of the person. Lexicographically the meaning of the word 'arrest' is given in various
dictionaries as follows :
a) In the Shorter Oxford English Dictionary, the various meanings of the word used
under various contexts are given. Those which are relevant for our purpose read
thus :
"As verb : 5. gen. to catch, lay hold upon;
6. Esp. to lay hold upon or apprehend by legal authority.
As a noun : 3. The act of laying hold of; seizure. 4. Spec. The
apprehending of one's person, in order to be forthcoming to answer an
alleged or suspected crime.
5. Custody, imprisonment."
b) The 'Webster's Third New International Dictionary, Vol. I, at page 121, gives the
meaning thus :
"1. arrest ........... 2. to catch or to take hold of; seize, capture.
Specify : to take or keep in custody by authority of law. 3. a : to catch
and hold ...................... 2 - arrest ........... 2.a : the act of seizing or
taking hold of; seizure ......; the taking or detaining of a person in
custody by authority of law; legal restraint of a person; custody,
imprisonment ............."
c) Stroud's Judicial Dictionary, IV Edition, Volume I, at page 184, defines the word
as follows :
"'arrest', is when one is taken and restrained from his liberty."
d) In the Bouvier's Law Dictionary, 1914 Edition, Vol. I, the meaning is given thus :
"Arrest : to deprive a person of his liberty by legal authority. The taking,
seizing or detaining the person of another, touching or putting hands
upon him in the execution of process, or any act indicating an intention
to arrest ............"
e) In the Dictionary of English Law (1959) by Earl Jowitt, Vol. I, the meaning of the
word is given at page 152 as follows :
"The restraining of the liberty of a man's person in order to compel
obedience to the order of a Court of Justice, or to prevent the
commission of a crime, or to ensure that a person charged or suspected
of a crime may be forthcoming to answer it. To arrest a person is to
restrain him of his liberty by some lawful authority.
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f) The Wharton's Law Lexicon, 12th Edition (1916) has defined the word 'arrest' in
the above lines.
g) Black's Law Dictionary, 5th Edition (1979), gives the following definitions :
"Arrest : To deprive a person of his liberty by legal authority. Taking,
under real or assumed authority, custody of another for the purpose of
holding or detaining him to answer a criminal charge or civil demand.
................ Arrest involves the authority to arrest, the assertion of that
authority with the intent to effect an arrest, and the restraint of the
person to be arrested ............. All that is required for an 'arrest' is
some act by officer indicating his intention to detain or take person into
custody and thereby subject that person to the actual control and will of
the officer, as formal declaration of arrest is required.
h) 'A Dictionary of Law' by L. B. Curzon (1979) gives the meaning of the word
'arrest' at page 22, as follows :
"To restrain and detain a person by lawful authority .........."
i) Mitra's Legal and Commercial Dictionary, Third Edition (1979), gives the following
definition of the word at page 77 :
"Arrest means the restraining of the liberty of a man's person in order
to compel obedience to the order of a Court of Justice, or to prevent the
commission of crime, or to ensure that a person charged or suspected
of a crime may be forthcoming to answer it."
"Arrest consists of the actual seizure or touching of a person's body with
a view to his detention. The mere pronouncement of words of arrest is
not an arrest, unless the person sought to be arrested submits to the
process and goes with the arresting officer. An arrest may be made
either with or without warrant ............"
j) Words and Phrases legally defined,
Second Edition (1969), Volume 1, at p. 114, gives the following definition :
"Arrest consists of the actual seizure or touching of the person's body
with a view to his detention. The mere pronouncement of words of
arrest is not an arrest, unless the person sought to be arrested submits
to the process and goes with the arresting officer ......... Arrest ...........
is the apprehending or restraining of one's person, in order to be
forthcoming to answer an alleged or suspected crime ............"
k) The New Encyclopaedia Britannica, 15th Edition, Vol. 1, at page 540, states as
follows about arrest :
"Arrest, placing of a person in custody or under restraint, usually for the
purpose of compelling obedience to the law. If the arrest occurs in the
course of criminal procedure, the purpose of the restraint is to hold the
person for answer to a criminal charge or to prevent him from
committing an offence. In civil proceedings, the purpose is to hold the
person to a demand made against him ........"
l) Halsbury's Laws of England, Third Edition (1955), Vol. 10, at page 342, states as
follows :
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"631. Meaning of Arrest : Arrest consists of the actual seizure or

touching of a person's body with a view to his detention.
The mere pronouncement of words of arrest is not an arrest, unless the
person sought to be arrested submits to the process and goes with the
arresting person."
m) Halsbury's Laws of England, IV Edition, Vol. II, in para 99 at page 75, states
thus :
"Meaning of arrest : Arrest consists in the seizure or touching of a
person's body with a view to his restraint; words may, however, amount
to an arrest if, in the circumstances of the case, they are calculated to
bring and do bring, to a person's notice that he is under compulsion and
he thereafter submits to the compulsion."
(In the footnote, the following example is given for the second view mentioned
above : Where a person is caught red-handed. (R. v. Howarth, (1828) 1 MCC 207).
Also Gelberg v. Miller, (1961) 1 All ER 291.)
n) The Corpus Juris Secondum, Vol. VI, at page 570, gives the meaning of the word
'arrest' when used in criminal charges, as follows :
"In criminal procedure, an arrest is the taking of a person into custody
in order that he may be held to answer for or be prevented from
committing a criminal offence .......... consists in the taking into custody
of another person under real or assumed authority for the purpose of
holding or detaining him to answer a criminal charge or of preventing
the commission of a criminal offence ........... The terms 'arrest' and
'apprehension' have been by some Courts used interchangeably as
meaning the same thing when employed in connection with the taking
of a person into custody. The effect of facts as constituting an arrest is a
question of law. Whether the particular circumstances have been
established which constitute an arrest is ordinarily, however, a question
of fact."
According to this text book, "to constitute an arrest, there must be an
intent to arrest, under a real or pretended authority, accompanied by a
seizure or detention of the person, which is so understood by the person
arrested".
o) In "A Hand-Book in Criminal Procedure and the Administration of Justice" by
Alien P. Bristow and John B. Williams, at 834 P.C., it is stated that an arrest is
taking a person into custody in a case and in the manner authorised by law. At 835
P.C., it is stated that an arrest is made by an actual restraint of the person or by
submission to the custody of an officer.
p) In another text-book "The Criminal Prosecution in England" by Patrick Devlin, at
page 68, the author has expressed his view as follows :
"The police have no power to detain any one unless they charge him
with a specified crime and arrest him accordingly. Arrest and
imprisonment are in law the same thing. Any form of physical restraint
is an arrest and imprisonment is only a continuing arrest. If an arrest is
unjustified, it is wrongful in law and is known as false
imprisonment ..........."
q) Winn, L.J., in R. v. Palferey; R. v. Sadler (1970) 2 All ER 12, when delivering the
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judgment of Court of which Lord Parker, C.J., was a member, said, in explaining the
term 'arrest' :
"It is not a question whether or not certain conditions precedent have
been satisfied. The question is merely whether or not he is a person
who is under arrest; whether he is under arrest or not depends on
whether he is free to go as he pleases, or has been told that he is in a
state of custody."
r) In Spicer v. Holt (1976) 3 All ER 71, Viscount Dilhorne, following the above view
of Winn, L.J., has observed thus :
"'Arrest' is an ordinary English word and its natural meaning is that
given to it by Winn, L.J., which I have cited. Whether or not a person
has been arrested depends not on the legality of the arrest, but on
whether he has been deprived of his liberty to go where he pleases."
16. From the various definitions which we have extracted above, it is clear that the word
'arrest', when used in its ordinary and natural sense, means the apprehension or restraint or
the deprivation of one's personal liberty. The question whether the person is under arrest or
not, depends not on the legality of the arrest, but on whether he has been deprived of his
personal liberty to go where he pleases. When used in the legal sense in the procedure
connected with criminal offences, an arrest consists in the taking into custody of another person
under authority empowered by law, for the purpose of holding or detaining him to answer a
criminal charge or of preventing the commission of a criminal offence. The essential elements to
constitute an arrest in the above sense are that there must be an intent to arrest under the
authority, accompanied by a seizure or detention of the person in the manner known to law,
which is so understood by the person arrested. In this connection, a debatable question that
arises for our consideration is whether the mere taking into custody of a person by an authority
empowered to arrest would amount to 'arrest' of that person and whether the terms 'arrest' and
'custody' are synonymous.
17. (a) The term 'custody' appears in a number of enactments. However, we are not giving an
exhaustive list of the provisions of enactments containing the said expression 'custody'. In
Sections 439, 442 (heading alone of the section) and S. 451 of the Criminal Procedure Code,
Section 223 of the Indian Penal Code, Sections 26 and 27 of the Indian Evidence Act, S. 45 of
the Customs Act, 1962 and Sections 19(c) , 25(b) and (c), 29(2) and (3) and 40 of the Tamil
Nadu Children Act, etc., the said term is used. However, it may be noted that the said word is
not defined in any of these enactments.
(b) The meaning of the term 'custody' is given in the Shorter Oxford English Dictionary, as
follows :
"1. Safe-keeping, protection, charge, care, guardianship.
2. The keeping of an officer of justice, confinement, imprisonment, durance.
3. Guardianship."
(c) In Webster's Third International Dictionary, Vol. I, at page 559, the word 'custody' is given
the following meanings :
"1.a. The act or duty of guarding and preserving, safe-keeping, b. Judicial or penal
safe-keeping, control of a thing or person with such actual or constructive
possession as fulfils the purpose of the law or duty requiring it; imprisonment or
durance of persons or charge of things." ........ The term 'custody' implies and
signifies various meanings dependent upon the context in which the term is used."
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(d) The Corpus Juris Secondum, Vol. 25, at page 69 when it is applied to persons, it implies
restraint and may or may not imply physical force sufficient to restrain depending on the
circumstances and with reference to persons charged with crime, it has been defined as
meaning on actual confinement or the present means of enforcing it, the detention of the
person contrary to his will. Applied to things, it means to have a charge or safe-keeping, and
connotes control and includes as well, although it does not require, the element of physical or
manual possession, implying a temporary physical control merely and responsibility for the
protection and preservation of the thing in custody. So used, the word does not connote
dominion or supremacy of authority. The said term has been defined as meaning the keeping,
guarding, care, watch, inspection, preservation or security of a thing, and carries with it the
idea of the thing being within the immediate personal care and control of the prisoner to whose
custody it is subjected; charge; charge to keep, subject to order or direction; immediate charge
and control and not the final absolute control of ownership.
17-A. Therefore, it is clear that we have to take the meaning of the term 'custody' with
reference to the context in which it is used.
18. Mr. Rangavajjula would submit that when a person is said to have been taken into custody
by an authority empowered to arrest, it implies the imposition of actual physical restraint or the
detention of the person concerned, resulting in the loss of his personal liberty and therefore it
amounts to 'arrest'. A contention similar to this was raised in State of Punjab v. Ajaib Singh
MANU/SC/0024/1952 : 1953CriLJ180 . In that case, the point for consideration was whether
the taking into custody of an abducted person by a police officer under Section 4 of the
Abducted Persons' (Recovery and Restoration) Act, 1949 (Act 65 of 1949) and the delivery of
such person by him into the custody of the officer in charge of the nearest camp can be
regarded as arrest and detention within the meaning of Article 22(1) and (2). It was contended
in that case, after referring to the various definitions of the word 'arrest' given in several well
known law dictionaries and urged in the light of such definitions, that any physical restraint
imposed upon a person must result in the loss of his personal liberty and must accordingly
amount to his arrest and that it is wholly immaterial why or with what purpose such arrest is
made and the mere imposition of physical restraint, irrespective of its reason, is arrest and as
such attracts the application of the constitutional safeguards guaranteed under Article 22(1)
and (2). While meeting that argument, the Court observed :
"That the result of placing such wide definition on the term 'arrest' occurring in
Article 22(1) will render many enactments unconstitutional, is obvious. To take one
example, the arrest of a defendant before judgment under the provisions of O. 38,
R. 1, C.P.C. or the arrest of a judgment-debtor in execution of a decree under S. 55
of the Code will, on this hypothesis, be unconstitutional inasmuch as the Code
provides for the production of the arrested person, not before a Magistrate but
before the Civil Court which made the order."
A Division Bench of the Bombay High Court, in Harban Singh v. State ( MANU/MH/0011/1970 :
AIR1970Bom79 , wherein the interpretation of the terms 'arrest' and 'custody' arose for
decision while dealing with Section 104(2) of the Customs Act, held as follows :"Arrest is a mode of formally taking a person in police custody, but a person may be
in the custody of the police in other ways. What amounts to arrest is laid down by
the legislature in express terms in S. 46, Cr.P.C., whereas the words 'in custody'
which are to be found in certain sections of the Evidence Act only denote
surveillance or restriction on the movement of the person concerned, which may be
complete, as, for instance, in the case of an arrested person, or may be partial. The
concept of being in custody cannot therefore be equated with the concept of a
formal arrest and there is difference between the two. Where, after the statements
recorded by the Customs Authorities, due to the night-fall, the accused are put up
before a Magistrate only next morning, it cannot be said that the accused were
arrested and as such any statement made by them cannot be said to be in violation
of Section 24 of the Evidence Act. ........
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In my opinion, however, the mere fact that there may be some restriction on the
movements of the accused or that the accused person may be in some sort of
surveillance at the time when he makes the confession would not ipso facto vitiate
the confession as being involuntary."
In support of his proposition, Mr. Rangavajjula would draw the attention of this Court to the
decision of the Supreme Court in Niranjan Singh v. Prabhakar, MANU/SC/0182/1980 :
1980CriLJ426 , wherein S. 439, Cr.P.C. came up for consideration. In that case, the Supreme
Court posed a question for consideration and answered the same as follows :
"When is a person in custody within the meaning of S. 439, Cr.P.C. ? When he is in
duress either because he is held by the investigating agency or other police or allied
authority or is under the control of the Court, having been remanded by judicial
order or having offered himself to the Court's jurisdiction and submitted to its order
by physical presence. No lexical dexterity or precedential profession is needed to
come to the realistic conclusion that he who is under the control of the Court or in
the physical hold of an officer with coercive power is in custody for the purpose of
Section 439. This word is of elastic semantics and its core meaning is that the law
has taken control of the person. Equivocatory quibblings and the hide-and-seek
niceties sometimes heard in Court that the police have taken a man into informal
custody but not arrested him, have detained him for interrogation but not taken him
into formal custody and the other like terminological dubieties (sic) are unfair
evasions of the straight-forwardness of the law. We need not dilate on this shady
facet here because we are satisfied that the accused did physically submit before
the Sessions Judge and the jurisdiction to grant bail thus arose. Custody in the
context of S. 439 (we are not, be it noted, dealing with anticipatory bail under S.
438) is physical control or at least physical presence of the accused in Court with
submission to the jurisdiction and order of the Court. He can be in custody not
merely when the police arrests him, produces him before a Magistrate and gets a
remand to judicial or other custody. He can be stated to be in judicial custody when
he surrenders before the Court and submits to its directions."
19. In order to fully understand the above view expressed by the Supreme Court, let us have a
cursory glance of Section 439, Cr.P.C. (which corresponds to S. 498 of the old Code). The
unfettered discretionary power of the High Court and the Court of Session under Section 439 of
the Code in granting bail can be exercised only on the satisfaction of two conditions : Firstly,
the person who moves for bail must be a person accused of an offence, bailable or non-bailable,
and secondly he must be in custody. The Supreme Court in Niranjan Singh's case
MANU/SC/0182/1980 : 1980CriLJ426 , on being satisfied that the first condition has been
fulfilled, gave the meaning of the term 'in custody' while considering the fulfilled of the second
condition. Be it noted that in the said case their Lordships did not express the view that the
mere taking of a person into custody by an authority empowered to arrest, or the mere
presence of the accused is enough to constitute the arrest of the accused, but only emphasized
that the physical control or at least physical appearance of the accused in Court should be
coupled with the submission to the jurisdiction and orders of the Court. In other words, the
person who is accused of an offence should submit himself to the jurisdiction or orders of the
authority empowered to arrest.
20. Coming to the Customs Act, a person who appears before any officer of Customs on being
required for an enquiry in connection with the smuggling of any goods, under Section 107 of
the Customs Act, or a person who attends before any gazetted officer of Customs on summons
in connection with an enquiry relating to the smuggling of any goods, under S. 108 of the said
Act, is not a person accused of an offence at that stage. Therefore, the submission of Mr.
Rangavajjula that since the person so required or summoned under the above said provisions
comes under the custody of the Customs Officials, he must be deemed to have been arrested in
the light of the interpretation by the Supreme Court of the term 'in custody' occurring in S. 439
of the Code in Niranjan's case (1980 Cr LJ 426), cannot be accepted. In fact, their Lordships
themselves have pointed out in that judgment that there is a shady facet in the expression of
the term in 'custody'. Hence, this decision cannot be availed of by the learned counsel in
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support of his contention that the mere taking of a person into custody would amount to arrest.
21. Now, We shall pass on to discuss about the interpretation of the same term 'in custody'
occurring in Sections 26 and 27 of the Evidence Act. In Laymaung v. Emperor, AIR 1924 Rang
173 : 1924 Cri LJ 381, it was said by the learned Judges in that case that the correct
interpretation of the term 'police custody' would be that 'as soon as an accused or suspected
person comes into the hands of a police officer, is, in the absence of any clear and unmistakable
evidence to the contrary, no longer at liberty and is therefore in custody within the meaning of
Sections 26 and 27 of the Evidence Act." See also Paramhansa v. State of Orissa,
MANU/OR/0057/1964 : AIR1964Ori144 . It has been held in Gurdial Singh v. Emperor, AIR
1932 Lah 609 : 1932 Cri LJ 756 and in Re : Edukondalu, MANU/AP/0070/1957 that there may
be police custody even without formal arrest. The Supreme Court in State of Uttar Pradesh v.
Deoman, MANU/SC/0060/1960 : 1960CriLJ1504 , has observed thus :
"Section 46, Cr.P.C. does not contemplate any formality before a person can be said
to be taken in custody. Submission to the custody by words of mouth or action by a
person is sufficient. A person directly giving a police officer by word of mouth
information which may be used as evidence against him may be deemed to have
submitted himself to the custody of the Police Officer."
The principle stated in that case is to the effect that when a person not in custody approaches a
police officer investigating an offence and offers to give information leading to the discovery of
a fact having a bearing on the charge which may be made against him, he may appropriately be
deemed to have surrendered himself before the police. See also Soni Vallabhdas Liladhar v.
Assistant Collector of Customs, AIR 1965 SC 481 : 1965 Cri LJ 490. Reiterating and expanding
this view taken in Deoman's case, MANU/SC/0060/1960 : 1960CriLJ1504 , the Supreme Court
in Gurbakh Singh v. State of Punjab, MANU/SC/0215/1980 : 1980CriLJ1125 , while examining
the scope of anticipatory bail under Section 438, Cr.P.C. has observed thus (at page 1137 of
Cri.L.J.) :
"While granting relief under S. 438(1), appropriate conditions can be imposed under
Section 438(2) so as to ensure an uninterrupted investigation. One of such
conditions can even be that in the event of the police making out a case of a likely
discovery under S. 27 of the Evidence Act, the person released on bail shall be
liable to be taken in police custody for facilitating the discovery. Besides, if and
when the occasion arises, it may be possible for the prosecution to claim the benefit
of S. 27 of the Evidence Act in regard to discovery of facts made in pursuance of
information supplied by a person released on bail by invoking the principles stated
by this Court in State of Uttar Pradesh v. Deoman Upadhyaya,
MANU/SC/0060/1960 : 1960CriLJ1504 ."
See also Legal Remembrancer v. Lalit Mohan Singh, MANU/WB/0391/1921 : AIR1922Cal342 ;
Santokhi v. Emperor, AIR 1933 Pat 149 : 1933 Cri LJ 349; and also Bharosa Ram Dayal v.
Emperor, MANU/NA/0141/1940 : AIR 1941 Nag 86 : 1941Cri LJ 390.
22. At this stage the decision of a Division Bench of this Court in Ramchandra in re,
MANU/TN/0335/1959 was brought to our notice. The facts of the case disclose that while the
accused therein was in judicial custody in pursuance of the judicial remand, he was interviewed
by the Inspector of Police to whom he gave some information. Subsequently, the accused on
the order of the Magistrate, came to police custody. Thereafter, the Inspector discovered a
relevant fact in pursuance of the information given by the accused while he was in jail custody.
The question arose whether that part of the information leading to the discovery of the relevant
fact, while the accused was in jail custody could be proved within the scope of S. 27. The
Division Bench, observing that there should not be a rigid interpretation of S. 27, held thus :
"Though, formally, the accused was in judicial custody under an order of remand
made by the Magistrate, he was temporarily in the custody of the Police Officer
when he was interrogated and must be held to have been in such custody for the
purpose of the applicability of S. 27."
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A close study of the above decision shows that the Bench had taken the view that though the
accused was in jail, he must be deemed to have been in temporary custody of the police at the
time of the interrogation, which position, in our view cannot be recognized in law. With great
respect to the learned Judges, we feel that such an extreme view would lead to an anomalous
position in the sense that the accused should be presumed to have been both in judicial custody
and the temporary custody of the police at the time of his interrogation and that the said view
cannot be in strict compliance with Section 27 of the Evidence Act, which envisages that the
accused should be in custody of the Police Officer at the time of making confession leading to
the discovery of a relevant fact. The decision of the Supreme Court cited in that case, viz.,
Ramkishan v. Bombay State, MANU/SC/0044/1954 : 1955CriLJ196 does not support that
extreme proposition, but on the other hand, in para 23, (at p. 116 of AIR SC) : (at p. 208 of Cri
LJ), it was observed that the statement or part thereof relating to the discovery of a fact can be
proved only when it comes within the four corners of Section 27. There are cases of this Court
bearing on this particular question of the nature of the custody generally assuming that unless
the accused be in police custody formally authorised, or in such custody after arrest, Section 27
would not apply. See Peria Gurusami Goundar v. Emperor, 1941 Mad WN (Cri) 94 : AIR. 1941
Mad 765 : 1942 Cri LJ 100 and in re Kamakshi Naidu, MANU/TN/0129/1942 : AIR 1943 Mad
89 : 1943 Cri LJ 304. This may be explained in another way also. The police may arrest a
person and detain him in custody for a maximum period of 24 hours for the purpose of
investigation and if the investigation cannot be completed within the specified period, the police
shall produce the accused before a Magistrate for remand - that is, judicial custody - as
contemplated under Section 167(1), Cr.P.C. The Magistrate who takes the accused into judicial
custody can pass orders authorising further police custody under Section 167(2). Here, when
the police take the accused back to police custody, such a custody becomes a police custody;
but it does not imply the re-arrest of the accused. Hence, the information given to the police
leading to the discovery of a relevant fact is said to have been given to the police while he is in
the custody of the Police Officer. It is pertinent to note that Sections 26 and 27 of the Evidence
Act speak about the admissibility or otherwise of a statement of 'a person accused of any
offence in the custody of a police officer'. The word 'arrest' is not used in either of those two
sections. Thus, the Legislature has in its wisdom, designedly, used the expression 'in the
custody of a police officer' so that there may not arise any legal conundrum even in a case
where a statement is made by a person accused of any offence to an authority empowered to
arrest him, though not actually arrested but has come only in his custody.
23. It was contended on behalf of the writ petitioners that applying the interpretation of the
expression 'in custody' appearing in Sections 26 and 27 of the Evidence Act, it should be held
that a person who is taken by a Customs Officer either for the purpose of enquiry or
interrogation or investigation, should be held to have come into the custody and detention of
the Customs Officer and he should be deemed to have been arrested from the moment he was
so taken into custody. We cannot agree with this submission for a number of reasons; Firstly,
the specified Customs Officer is empowered to require or summon any person for the purpose
of an enquiry or examination in connection with the smuggling of any goods, either under
Section 107 or under Section 108 of the Customs Act, as the case may be. Secondly, it is well
settled that Customs Officers whose powers are for the purpose of checking the smuggling of
goods and the due realization of the Customs Duties and determining the action to be taken in
the interest of the revenue of the country by way of confiscation of goods on which no duty had
been paid and by imposing penalties and fines, and who are not primarily concerned with the
detection and punishment of the crimes committed by those persons but only interested in the
detection and prevention of the smuggling of goods and the safeguarding the recovery of
customs duties are not police officers. See State of Punjab v. Barkatram,
MANU/SC/0021/1961
:
[1962]3SCR338
;
Collector
of
Customs
v.
Kothumal,
MANU/TN/0218/1967 : AIR1967Mad263 (FB); Illias v. Collector of Customs, Madras,
MANU/SC/0297/1968 : 1970CriLJ998 and Ramesh Chandra Mehta v. State of West Bengal,
MANU/SC/0282/1968 : 1970CriLJ863 . Thirdly, a Custom Officer is not a Court, as held in Hira
H. Advani v. State of Maharashtra, MANU/SC/0102/1969 : 1971CriLJ5 . Fourthly, when an
enquiry is being conducted under Section 107, or under Section 108 of the Customs Act and a
statement is given by a person against whom the enquiry is being held, it is not a statement
made by a person who stands in the character of an accused person, as found in Percy Rustomji
v. State of Maharashtra, MANU/SC/0161/1971 : 1971CriLJ933 and Ramesh Chandra v. State of
West Bengal, MANU/SC/0282/1968 : 1970CriLJ863 . Fifthly, any statement made by a person
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before the Customs Officer is not hit by Section 25 of the Evidence Act as he is not a police
officer. See Badaku Joti Svant v. State of Mysore, MANU/SC/0276/1966 : 1966CriLJ1353 .
Sixthly, the machinery created under the Customs Act is not one for the purpose of
investigation into crimes and it is only the side effect resulting from the enforcement of the
Customs Act that certain offences are detected and therefore, investigation of the Customs
Crimes under the Act is not an investigation as defined in the Criminal Procedure Code : Vide,
State of Maharashtra v. Lakshmi Chand Varhomal, MANU/MH/0341/1977; Assistant Collector of
Central Excise, Preventive, Madras v. Krishnamoorthy, MANU/TN/0012/1983. Also see State of
Uttar Pradesh v. Durga Prasad, MANU/SC/0216/1974 : 1974CriLJ1465 ; Barkat Ram's case
MANU/SC/0021/1961
:
[1962]3SCR338
;
Eknath
v.
State
of
Maharashtra,
MANU/SC/0087/1977
:
1977CriLJ964
and
State
of
Maharashtra
v.
Mahipathi,
MANU/SC/0147/1977 : 1977CriLJ968 , all these latter cases holding that the investigation
carried on by the officer of the Railway Protection Force, the Officer under the Prevention of
Food Adulteration Act and the Forest Officer under the Indian Forest Act, is not an investigation
as defined under Section 2(h), Cr.P.C. It is worthwhile to refer at this juncture to the Judgment
of a Full Bench of this Court in Collector of Customs v. Kotmal, MANU/TN/0218/1967 :
AIR1967Mad263 (FB), wherein it has been pointed that neither the enquiry under Section 107
nor the enquiry under Section 108 of the Customs Act can in any way, in substance or in law,
be considered to be the same as an investigation into the criminal offence by an officer in
charge of a police station under Chapter XIV of the old Code, which is the primary test for the
application of Section 25 of the Evidence Act. Seventhly, the Supreme Court in Veera Ibrahim v.
State of Maharashtra, MANU/SC/0514/1976 : 1976CriLJ860 , agreeing with the principle laid
down in Mehta v. State of West Bengal, MANU/SC/0282/1968 : 1970CriLJ863 , held that when
the statement of a person is recorded by the customs officer under Section 108, that person is
not a person 'accused of any offence' under the Customs Act and that an accusation which
would stamp him with the character of such a person was levelled only when the complaint was
filed against him by the Assistant Collector of Customs complaining of the commission of the
offences under Section 135(a) and under S. 135(b) of the Customs Act.
24. Mr. Kareem, relying (1) on the decision in Francis Coralie v. Union Territory of Delhi,
MANU/SC/0517/1981 : 1981CriLJ306 wherein it has been observed that the right to life
enshrined in Article 21 cannot be restricted to mere animal existence and it means something
much more than just physical survival, (2) on the observation of the Supreme Court in Malak
Singh v. State of Punjab, MANU/SC/0157/1980 : 1981CriLJ320 reading, "Surveillance may be
intrusive and it may so seriously encroach on the privacy of a citizen as to infringe his
fundamental right to personal liberty guaranteed by Article 21 of the Constitution and the
freedom of movement in Article 19(1)(d). That cannot be permitted", and also (3) on the
principle laid down in Maneka Gandhi v. Union of India, MANU/SC/0133/1978 : [1978]2SCR621
wherein it has been said that the right of free movement is vital element of personal liberty,
submitted that in view of the above principles laid down by the Supreme Court in the above
decisions, any kind of surveillance or restriction on the movement of the person concerned
cannot be permitted and that the Bombay High Court in Harban Singh v. State,
MANU/MH/0011/1970 : AIR1970Bom79 has not considered this position of law. In answering
this contention, Mr. Thiagarajan, learned Senior Central Government Standing Counsel, would
submit that when a customs officer exercising authority either under Section 107 or under
Section 108 of the Customs Act is not a police officer and the person interrogated is not a
person accused of an offence and so the protection given under Articles 20(3), 21 and 22 of the
Constitution cannot be availed of. The learned Advocate General urges that a person is required
under Section 107 and summoned under Section 108 for the purpose of an enquiry in
connection with the smuggling of any goods and hence such an enquiry or interrogation or
investigation receives sanction from the said statutory provisions, which is a procedure
established by law within the meaning of Article 21 and so it cannot be said that such an
enquiry, investigation or interrogation will be violative of Article 21. In other words, such an
enquiry, interrogation or investigation of a person under the Customs Act is not without a
statutory sanction and therefore the contention of Mr. Kareem that there is a violation of
personal liberty by the customs officials in summoning the person for enquiry or interrogation
cannot be accepted. In support of this contention, the learned Advocate General cited the
decision of the Supreme Court in Balakrishna v. State of West Bengal, MANU/SC/0201/1973 :
1974CriLJ280 , wherein Krishna Iyer, J., has made the following observation :
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"This provision is wide in its terms and is clearly designed to facilitate the
investigatory process by examination without restriction on person, place or time.
Lest it should be misused the law is choosy and requires the empowerment of
customs officers by a general or special power of the Collector to exercise these
larger powers. Does S. 107 enable the interrogation of even the potential
delinquent or must it be confined only to witnesses who throw light on the
delinquent's contravention of the law ? 'Any person' in the section certainly covers
every person including a suspect and potential accused. These words of the statute
have to be interpreted in the light of the policy and purpose of the law. The object
of S. 107, located in the neighbourhood of Section 108, indicates that while the
normal process of enquiry is facilitated by Section 108, investigatory emergencies
are taken care of by Section 107. May be situations arise where the failure to
question a witness quickly may mean irretrievable loss of a valuable material and
Section 107 meets this need. The context in which the words 'any person' occur,
the object of the provision and the policy underlying Chapter XIII of the Customs
Act assume relevance and become material in the construction of the text. Nor are
we faced with any difficulty on account of Article 20(3) of the Constitution since the
examination is not of an accused person."
25. As regards the question of surveillance, in Malak Singh's case MANU/SC/0157/1980 :
1981CriLJ320 itself, the Supreme Court observed that so long as surveillance is for the purpose
of preventing crime and is confined to the limits prescribed under the specified provisions, a
person whose name is included in the surveillance register cannot have a genuine cause for
complaint. The Supreme Court has further pointed out that interference in accordance with the
law and for the prevention of disorder and crime is an exception recognised even by the
European Convention of Human Rights to the right to respect for a person's private and family
life, and ultimately pointed out thus :
"As we said, discrete surveillance of suspect, habitual and potential offenders, may
be necessary and so the maintenance of history sheet and surveillance register may
be necessary too, for the purpose of prevention of crime. History sheets and
surveillance registers have to be and are potential documents. Neither the person
whose name is entered in the register nor any member of the public can have
access to the surveillance register. The nature and character of an entry in the
surveillance register is so utterly administrative and non-judicial that it is difficult to
conceive of the application of the rule of audi alteram partem. Such enquiry as may
be made has necessarily to be confidential and it appears to us to necessarily
exclude the application of that principle. In fact, observance of the principles of
natural justice may defeat the very object of the rule providing for surveillance.
There is every possibility of ends of justice being defeated instead of being served."
What their Lordships have stated in the judgment is that there should not be excessive
surveillance falling beyond the limits prescribed by the rules and in such a case a citizen would
certainly be entitled to the Courts' protection and that there should not be any illegal
interference in the guise of surveillance and therefore the surveillance has to be unobtrusive
and within bounds. Further, as held by the Supreme Court in Raja Narayanlal Bansilal v.
Maneck Phiroz Mistry, MANU/SC/0016/1960 : [1961]1SCR417 , reiterated in a number of later
decisions inclusive of Nandini Satpathy v. P. L. Dani, MANU/SC/0139/1978 : 1978CriLJ968 "One of the essential conditions for invoking the constitutional guarantee enshrined
in Article 20(3) is that a formal accusation relating to the commission of an offence
which would normally lead to his prosecution must have been levelled against the
party who is being compelled to give evidence against him."
See also State of Bombay v. Kathi Kalu, MANU/SC/0134/1961 : 1961CriLJ856 ; Popular Bank v.
Madhava Naik, MANU/SC/0317/1964 : AIR1965SC654 ; Collector of Customs v. Kothumal,
MANU/TN/0218/1967 : AIR1967Mad263 (FB); Yusuf Ali Ismail Nagri v. State of Maharashtra,
MANU/SC/0092/1967 : 1968CriLJ103 and Veera Ibrahim v. State of Maharashtra,
MANU/SC/0514/1976 : 1976CriLJ860 . In this connection, Mr. Kareem would state that the
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above conditions for invoking Article 20(3) is not in dispute.

26. In Harban Singh's case MANU/MH/0011/1970 : AIR1970Bom79 what the Division Bench of
the Bombay High Court observed was that the words 'in custody' which are to be found in
certain sections of Evidence Act denote surveillance or restriction on the movements of the
person concerned. We feel that we need not elaborately deal with the judgment of the Bombay
High Court since we have exhaustively discussed supra, the question of custody and
surveillance. In this connection, we would like to point out that Section 24 of the Evidence Act
bars the use of a confession made by an accused person as irrelevant in a criminal proceeding if
it appears to the Court that the confession had been obtained by inducement, threat or promise
having reference to the charge against the accused person. Section 25 reads that no confession
made to a police officer shall be proved as against a person accused of any offence. In a
proceeding under the provisions of the Customs Act, when any person is required or summoned
for an enquiry under Section 107 or Section 108, that person is not an accused person and the
officer summoning that person is not a police officer. Any confession made by a person
summoned under S. 107 or S. 108 before the Customs Officer is admissible in law since it is not
hit either by S. 25 or S. 26 of the Evidence Act. If it is shown in a given case that such a
confession was obtained by the Customs Officer by exertion of inducement, threat, coercion or
duress or extracted by illegally detaining the person in an unauthorised prolonged custody in
contravention of the provisions of the Customs Act, or obtained by using Third Degree methods,
then the question about the acceptability and reliability of such involuntary confessions would
arise. What Mr. Kareem complains is that a person in such an enquiry is virtually taken as a
prisoner into the Customs House and taken hither and thither by the preventive officer of the
Customs Department and during that period the degree of freedom of the person concerned in
the company of the Customs Officer is only a mystery and that in fact he is in the captivity of
the Customs Officials, sleeping in the bosom of the Customs House as a non-paying guest
without stirring out of the Customs House for days together and as such he is quite unable to
go anywhere he likes or wishes, but is being dogged by the Customs Official all the while and he
is completely under their will and surveillance. He also, placing reliance in the observations of
the Supreme Court in Nandini Sathpathy's case MANU/SC/0139/1978 : 1978CriLJ968 , made a
scathing attack about the in communicado interrogations and submitted that such
interrogations are not only derogatory and degrading, but also violative of Article 21 of the
Constitution. This kind of complaint can be examined and decided only with reference to the
facts of each case and one cannot make any general proposition of law about the conduct of the
Customs Officers in general in the matter of enquiry, interrogation or investigation, based on
any assumption or conjecture.
27. In an enquiry held under Section 107 or Section 108 of the Customs Act, not only the
persons who subsequently may become the accused with reference to the matter under
enquiry, but also persons who are conversant or suspected to be conversant with the smuggling
of any goods, are examined. This is the reason why in the said sections the words 'any person'
are used so as to denote all the persons inclusive of the persons who subsequently become
accused. At that stage, there is no question of arrest. Arrest comes into the picture only when
an officer of the Customs empowered in this behalf by general or special order of the Collector
of Customs has reason to believe that any person has been guilty of an offence punishable
under Section 135. Sections 107 and 108, as they stand, do not give any power to the Customs
Officer to take any person under compulsion and detain him for a prolonged period under the
guise of enquiry, investigation or interrogation. The statutory threat embodied in sub-section
(4) of Section 108 is to the effect that in case the person summoned to give evidence and
produce documents in connection with the enquiry relating to the smuggling of any goods, fails
to do so or gives a false statement, he will be liable to be proceeded against under Section 193
or Section 228, I.P.C. and for that purpose, that enquiry is to be deemed to be a judicial
proceeding within the meaning of the abovesaid penal provisions. Section 107 and Section 108
are analogous to the provisions of S. 160(1), Cr.P.C. As rightly pointed out by the Advocate
General if a person appears before a Customs Officer in compliance with the summons for the
purpose of giving information or evidence, as in the case of a person appearing before a police
officer under Section 160(1), Cr.P.C. can it be said that such a person comes into the custody of
the Customs Officer concerned, amounting to arrest ? In our view, there is no such custody
amounting to an arrest in such a situation. Further, as rightly pointed out by Mr. P.
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Rajamanickam, the learned Public Prosecutor, there is no question of surveillance, official or

unofficial, in summoning a person for interrogation, and a person taken for interrogation cannot
be said to have been arrested within the meaning of the said term. If such wide interpretation is
given then even the attendance of a person before a police officer under Section 160(1), Cr.P.C.
would amount to an arrest. That is definitely not the law.
28. Yet another argument was advanced that when a Customs Officer takes a person into his
custody under the guise of making an enquiry or interrogation, or for the purpose of
investigation, it would be similar to an offence of wrongful restraint as defined in Section 339,
I.P.C., punishable under Section 241, I.P.C. or an offence of wrongful confinement as defined in
Section 340 punishable under Section 342, I.P.C. This argument is totally misconceived,
because it is only an officer authorised by law to do so, does so.
29. For all the discussions made above, we hold that 'custody' and 'arrest' are not synonymous
terms. It is true that in every arrest there is a custody, but not vice versa. A custody may
amount to an arrest in certain cases but not in all cases. In our view, the interpretation that the
two terms 'custody' and 'arrest' are synonymous is an ultra legalist interpretation, which if
accepted and adopted, would lead to a startling anomaly resulting in serious consequences.
30. Mode of arrest :- This is a crucial question in those cases which has led to the constitution
of this Full Bench. Section 36(1), Cr.P.C. under the heading 'arrest how made' coming, under
Chapter 5 with the caption 'arrest of persons' reads thus :
"(1) In making an arrest the Police Officer or other person making the same shall
actually touch or confine the body of the person to be arrested, unless there be a
submission to the custody by word or action.
(2) .. ... ... ... ...
(3) .. ... ... ... ..."
The above section applies to all arrests whether made under a warrant or without a warrant,
and prescribe the mode of arrest. The Criminal Procedure Code contains various provisions by
and under which various authorities and private persons are empowered to arrest. An analysis
of the provisions under this Chapter shows that a person may be arrested by "(1) a police officer without a warrant under Sections 41(1) and 151; under a
warrant under Sections 72 and 74; under the written order of an officer in charge of
a police station under Sections 55 and 157; under the orders of a Magistrate under
Section 44 and in non-cognizable offence under Section 42;
(2) a superior police officer under S. 36;
(3) an officer in charge of a police station under Sections 41(2) and 157;
(4) a Magistrate under S. 44;
(5) a military officer under Sections 130 and 131; and
(6) a private person without warrant under S. 43; under a warrant under Sections
72 and 73; under the orders of the police officer under S. 37, and under the orders
of a Magistrate under Sections 37 and 44."
The modality of arrest as contemplated under Section 46 is that while making an arrest, a
police officer or other person making the same (arrester) "(1) Should actually touch the body of the person to be arrested or
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(2) Should actually confine the body of the person to be arrested."

These kinds of modality of arrest are not necessary in case the person intended to be arrested
submits, either by word or by action, to the authority of the arrester. In other words, if the
person to be arrested submits to the authority or control of the arrester, the latter need not
actually touch or confine the body of the person to be arrested. Conversely, if he does not so
submit himself to the authority of the arrester, any of the two conditions mentioned above, viz.,
the touching or confinement of the body of the person to be arrested should be satisfied.
31. In Emperor v. Lallu Bachji, 1919 Cri LJ 391 : AIR 1919 Bom 39. It has been pointed out
that the English common law rule is that except in case of submission, arrest of a person
consists of the actual seizure or touching of the body of a person with a view to his detention
and that this rule would no doubt be followed in India, although there is no express authority on
the subject.
32. The Nagpur Judicial Commissioner's Court in Hari Mohanlal v. Emperor, 1929 Cri LJ 128
(Nag) (has held) that there can be no arrest within the meaning of Section 45(1), Cr.P.C. unless
the person to be arrested is actually touched by the process server and that an arrest by mere
oral declaration is not legal, and there can be no conviction under Section 225, I.P.C.
(Resistance or obstruction of lawful apprehension or escape of or rescue in cases not otherwise
provided for) of a person who is so arrested.
33. In Campbell v. Tormey, 1969 1 WLR 189, it was ruled that voluntary attendance at a police
station is not an arrest. In the light of the decision in Campbell case, there are Indian decisions
also holding the view that mere attendance or uttering of words not in conformity with the
provisions of Section 45, Cr.P.C. does not amount to arrest. Vide in Re Amarnath, 1883 ILR 5
All 318.
34. Before the Queen's Bench Division, in Alderson v. Booth, 1969 All ER 271, an interesting
question came up for consideration as to whether the accused in that case had been arrested
after the first breath test under S. 2(4) of the Road Safety Act, 1967. Lord Parker, C.J. speaking
for himself, observed thus :
"There are a number of cases, both ancient and modern, as to what constitutes an
arrest, and whereas there was a time when it was held that there could be no lawful
arrest unless there was an actual seizing or touching, it is quite clear that that is no
longer the law. There may be an arrest by mere words, by saying "I arrest you"
without any touching, provided of course that the accused submits and goes with
the police officer. Equally it is clear, as it seems to me, that an arrest is constituted
when any form of words in used which, in the circumstances, of the case, were
calculated to bring to the accused's notice, and did bring to the accused's notice,
that he was under compulsion and thereafter he submitted to that compulsion."
The above decision fortifies the view that the actual seizing or touching of the body of the
person to be arrested is not necessary in a case where the arrester by word brings to the
accused's notice that he is under compulsion and thereafter he submits to that compulsion. This
is in conformity with the modality of the arrest contemplated under Section 46, Cr.P.C. wherein
also it is provided that the submission of a person to be arrested to the custody of the arrester
by word or action can amount to the custody of the arrester by word or action (and) can
amount to an arrest. The quintessence of the decision in Alderson v. Booth, 1969 2 All ER 271
is that there must be an actual seizing or touching, and in the absence of that, it must be
brought to the notice of the person to be arrested that he is under compulsion, and consequent
upon it, the said person should submit to that compulsion, and then only the arrest is
consummated. Reference also could be made to decision in the State of U.P. v. Deoman,
MANU/SC/0060/1960 : 1960CriLJ1504 , in which it has been ruled "submission to the custody
by word or action by a person is sufficient" so as to constitute arrest under Section 46, Cr.P.C.
In paragraph 57 of the same judgment (at page 1143) : (at p. 1528), it has been observed
that,
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"S. 46, Cr.P.C. provides that in making an arrest, the police officer or other person
making the same shall actually touch or confine the body of the person to be
arrested unless there be a submission to the custody by word or action."
35. A single Judge of the Gujarat High Court in Kajaji v. State, MANU/KE/0135/1968 has held
that the mere surrounding of a person by the police does not amount to his arrest.
36. In effecting a lawful arrest, the arrester should have the power or authority sanctioned by
law, to arrest. Otherwise, his action will be wholly without jurisdiction and in such a contingency
the person to be arrested has got the right of private defence and can repel the arrest even by
violence subject to Section 99, I.P.C. See In re Pedda Munni Reddy MANU/TN/0375/1948 :
AIR1948Mad472 and In re Marceda Somaiya MANU/TN/0394/1944 : AIR1945Mad409 .
Therefore, in order to have the action of the arrester to be in conformity with the legal and
constitutional provisions, it must be an arrest properly and lawfully made in terms of the
specified provisions of the Criminal Procedure Code. If it is to be held that the actual seizure or
touching of a person's body with a view to his arrest is not necessary, in order to make his
arrest, but that the mere utterance of a guttural word or sound, a gesture of the index finger or
hand, the sway of the head or even the flicker of an eye are enough to convey the meaning to
the person concerned that he has lost his liberty and brought under arrest, as pointed out by
the Division Bench in Kaiser Otmar's case 1981 Mad LW 158 : 1981 Cri LJ 208, then it will not
only be in conflict with the modality of arrest prescribed in Section 46 of the Cr.P.C. but also will
lead to a startling anomaly and cause serious consequences. Can it be said that a private citizen
who is empowered to make the arrest under Section 43, Cr.P.C., can say that he has arrested a
person merely by uttering of words or making of a gesture ? Even in the case of a police officer
or other officers empowered to arrest, the mere utterance of words or gesture or flickering of
eyes, etc., would never amount to an arrest, unless the person concerned submits to the
custody of the arrester.
37. In regard to the principles to be applied in interpreting the statutes, there are a number of
well recognised authoritative judicial pronouncements about which we would like to refer in this
context. In Taylor v. Taylor, 1875 1 Ch D 426, it has been observed thus :
"When a statutory power is conferred for the first time upon a Court, and the mode
of exercising it is pointed out, it means that no other mode is to be adopted."
Applying the above principle, in Nazir Ahmed v. King Emperor MANU/PR/0020/1936, the Judicial
Committee made the following observations :
"......... where a power is given to do a certain thing in a certain way the thing must
be done in that way or not at all. Other methods of performance are necessarily
forbidden."
38. The correctness of the decision in Nazir Ahmed v. King Emperor, MANU/PR/0020/1936 has
been accepted by the Supreme Court in Shiv Bahadur Singh v. State of Vindhya Pradesh,
MANU/SC/0053/1954 : 1954CriLJ910 and Deep Chand v. State of Rajasthan,
MANU/SC/0118/1961 : [1962]1SCR662 .
39. Once again, the principle in Nazir Ahmad v. King Emperor, MANU/PR/0020/1936 was reaffirmed by the Supreme Court in State of Uttar Pradesh v. Singhara Singh,
MANU/SC/0082/1963 : [1964]4SCR485 wherein a question arose with regard to the
admissibility of the oral evidence given by a Second Class Magistrate not specially empowered
in matter of recording a confession of guilt made to him by the accused and purported to have
been recorded under Section 164, Cr.P.C. In that connection, the Supreme Court, after having
stated (at page 266),
"The rule adopted in Taylor v. Taylor, (1875) 1 Ch D 426, is well recognised and is
founded on sound principle. Its result is that if a statute has conferred a power to
do an act and has laid down the method in which that power has to be exercised, it
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necessarily prohibits the doing of the act in any other manner than that which has
been prescribed. The principle behind the rule is that if this were not so, the
statutory provision might as well not have been enacted." has finally concluded
thus :
"When a statute confers a power on certain judicial officers, that power
can obviously be exercised only by those officers. No other officer can
exercise that power, for it has not been given to him."
In the result, the Supreme Court upheld the view of the High Court in rejecting the oral
evidence given by the Magistrate.
40. In yet another case, in Narbada Prasad v. Chhagalal, MANU/SC/0333/1968 : [1969]
1SCR499 , the Supreme Court, posing a question for its consideration whether there was power
in a Court to dispense with the compliance of the provisions of Section 33(5) of the
Representation of the People Act, 1951, answered negatively, holding,
"It is well understood rule of the law that if a thing is to be done in a particular
manner it must be done in that manner or not at all. Other modes of compliance
are excluded."
The above principle was re-affirmed by the Supreme Court in State of Gujarat v. Shantilal,
MANU/SC/0063/1969 : [1969]3SCR341 while disposing of a civil appeal relating to the
acquisition of a land required for the purpose of a Town Planning Scheme. The ratio of that case
is as follows :
"Land required for any of the purposes of a town planning scheme cannot be
acquired otherwise than under the Act, for it is a settled rule of interpretation of
statutes that when power is given under a statute to do a certain thing in a certain
way, the thing must be done in that way or not at all."
41. Following the well-recognised principle of the interpretation of the statutes, laid down in the
above decisions when Section 46, Cr.P.C. is examined, there cannot be a second opinion that
the method and the execution of arrest of a person intended to be arrested should be
performed only in the manner prescribed in the statute and the other methods of performance
are forbidden; otherwise the whole provision of S. 46, Cr.P.C. would be rendered nugatory and
functionless. If the method of arrest is not performed in the manner known to law and as
prescribed under Section 46, Cr.P.C., but by the mere utterance of words, making of gestures,
flickering of eyes, nodding of the head, etc., as ruled in Kaiser Otmar's case, 1981 Mad LW
158 : 1981 Cri LJ 208, we are of the firm view that the modes of arrest prescribed in that ruling
are not only contrary to Section 46, Criminal P.C., but will also render the section non-existent
or otiose, and such a procedure cannot be adopted to effect a valid arrest.
42. It is now well settled that failure to comply with the requisite procedure would be fatal to
the legality of the execution of any act or of the passing of any order by anyone authorised by
law. The essence of this principle is reflected in Maneka Gandhi's case MANU/SC/0133/1978 :
[1978]2SCR621 wherein it has been held that the procedural safeguards are the essence of
liberty.
43. In "Judicial Review of Administrative Action (Third Edition) by S.A. de Smith, at page 122, it
is stated thus :
"The law relating to the effect of failure to comply with procedural requirements
resembles an inextricable tangle of loose ends."
44. As pointed out in Maneka Gandhi's case MANU/SC/0133/1978 : [1978]2SCR621 , if the
statute makes itself clear on any point, then no more question arises; but if the statute is silent,
then the law, may, in a given case, make an application and apply the principle of natural
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justice.
45. In Mager and St. Mellons R.D.C. v. New Port Corporation, 1952 AC 189 Lord Simons said :
"The duty of the Court is to interpret the words that the Legislature has used; those
words may be ambiguous, but, even if they are, the power and duty of the Court to
travel outside them on a voyage of discovery are strictly limited."
46. In Nandini Satpathi's case, MANU/SC/0139/1978 : 1978CriLJ968 their Lordships of the
Supreme Court have laid down the proposition of law as follows :
"We feel that by successful interpretation judge-centred law must catalyse
community-centred legality."
We have already expressed that the modality of arrest indicated in Kaiser Otmar's case 1981
MLJ158 : 1981 Cri LJ 208 is not in conformity with Section 46, Cr.P.C., which section by itself is
very clear. We feel that the Bench perhaps would not have laid down this dictum regarding the
mode of arrest had Section 46, Cr.P.C. been brought to their notice. Further, the Bench has not
also adverted to the leading Full Bench decision of this Court in Collector of Customs v.
Kotumal,
MANU/TN/0218/1967
:
AIR1967Mad263
and
Harban
Singh
v.
State,
MANU/MH/0011/1970 : AIR1970Bom79 touching on this issue. For the reasons stated above,
we hold that the rule laid down by the learned Judges constituting the Division Bench, in Kaiser
Otmar's case, 1981 Mad LW 158 : 1981 Cri LJ 208 with great respect, with regard to the mode
of arrest is not good law.
47. The other question that arises for our consideration in this reference is whether the
Customs Officers can detain any person under the guise of an enquiry, interrogation or
investigation beyond twenty-four hours before producing him before the Magistrate and
whether such a detention would be violative of Article 22 of the Constitution of India. We have
launched on a detailed discussion while interpreting the term "custody", which discussion has a
bearing on this question. The question of production of a person before a Magistrate within
twenty-four hours as envisaged in Article 22(2) of the Constitution of India, would arise only if
that person is arrested and detained in custody.
48. Article 22(2) and (3) of the Constitution of India reads thus :
"22(2). Every person who is arrested and detained in custody shall be produced
before the nearest Magistrate within a period of twenty-four hours of such arrest
excluding the time necessary for the 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.
(3) Nothing in Cls. (1) and (2) shall apply (a) to any person who for the time being is an enemy alien; or
(b) to any person who is arrested or detained under any law providing
for preventive detention."
For invoking, Article 22(2), as pointed out by the learned Advocate-General, two requirements
must be satisfied : (1) The person should have been arrested; and (2) he should have been
detained in custody. At the stage of enquiry, or investigation or interrogation held under S. 107
or S. 108 of the Customs Act, the person required or summoned for such enquiry or
examination is not arrested, nor has he become an accused. If, in a given case, the Customs
Officials detains any person required or summoned under the provisions of the Customs Act for
a prolonged period, even exceeding twenty-four hours, or keeps him in closed doors as a
captive prisoner surrounded by officials or locks him in a room or confines him to an office
premises, he does so at his peril, because Sections 107 and 108 of the Customs Act do not
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authorise the officer belonging to the Customs Department to detain a person for a prolonged
custody and deprive him of the elementary facilities and privileges to which he is entitled. In
such a situation, the officer must be held to have overstepped his limits, and any confessional
statement obtained from such a person by keeping him in a prolonged custody has to be
regarded with grave suspicion, because there is always room for criticism that such a
confession might have been obtained from extorted mal-treatment or induced by improper
means. As pointed out by the Supreme Court in Nathu v. State of Uttar Pradesh,
MANU/SC/0104/1955 : 1956CriLJ152 , the prolonged custody may stamp the confessional
statement so obtained as involuntary one, and the intrinsic value of such a statement may be
vitiated. The question whether a person has been kept in prolonged custody is a question of
fact, which has to be carefully considered against the background of the circumstances
disclosed in each case. So, it is neither advisable nor possible to lay down any inflexible
standard for the guidance of Courts, though in the ultimate analysis, it is the Court which is
called upon to decide the circumstances of a particular case.
49. Mr. Kareem brought to the notice of this Court a copy of the notice issued under Section
108 of the Customs Act, wherein the person concerned in that notice was summoned to appear
before the Superintendent of Customs at 10 a.m., and required not to leave the Customs House
without leave, and if the case is adjourned, without ascertaining the date of adjournment. The
grievance of the learned counsel is that this kind of summons does not specify and regulate the
commencement and ending of the time of enquiry and that the mere reading of the notice
would indicate that the person summoned should be in the Customs House until he is given a
green signal by the Customs Officials, which, in turn may give room for a prolonged custody of
that person. We hope that the officers concerned would not give any room for a complaint of
continuous and prolonged detention of persons summoned to the office under the strength of
such a notice for the purpose of an enquiry or interrogation or investigation, but dispose them
of within a reasonable time, and, if necessary, by adjourning the enquiry to the following day.
50. Drawing the attention of this Court to sub-section (2) of S. 104 of the Customs Act, Mr.
Kareem advanced an argument that as this provision casts a statutory obligation on the
arresting officer belonging to the Customs Department to take an arrestee without unnecessary
delay to a Magistrate, it must be held that the arrestee cannot be kept in custody even a
minute after the arrest. We are not impressed by this argument for the reasons to be
mentioned herein. Section 104(1) and (2) of the Customs Act, which speaks about the stage of
arrest of a person believed to be guilty of an offence punishable under S. 135 and his
production before the Magistrate, reads as follows :
"104(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."
51. Now let us examine the above submission of the learned counsel in the light of Article 22(2)
of the Constitution of India. Article 22(2) requires the arrester to produce the arrestee before a
Magistrate within a period of twenty-four hours excluding the time necessary for the journey
from the place of arrest to the Court of the Magistrate. Thus, it is clear that the maximum time
of twenty-four hours is provided under the Constitution for the production of an arrestee before
the Magistrate. Therefore, needless to mention that once a person is arrested either by a
Customs Officer under Section 104(1) of the Customs Act or by a Police Officer under the
provisions of the concerned Act or by any other person authorised to arrest, Article 22(2) of the
Constitution of India will come into play and, the person arrested should be produced before a
Magistrate without giving room for any complaint that Article 22(2) is violated.
52. It would be apposite in this connection to refer to the observations made in Harban Singh v.
State, MANU/MH/0011/1970 : AIR1970Bom79 before which the same question was raised :
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"It is true that there is no provision similar to S. 61, Cr.P.C. (old) (corresponding to
Section 57 of the new Code, Cr.P.C.) which is analogous to S. 104(2) of the
Customs Act), which lays down a maximum period of twenty-four hours within
which an accused person should be put up before a Magistrate, but that may have
been unnecessary in view of the fact that such a maximum period is now laid down
by the Constitution itself in Article 22(2) thereof."
See also Jeevakan v. Officer-in-Charge of 'Q' Branch of Tamil Nadu Police, 1982 Mad LW 261 :
1963 Cri LJ 1009 and also Jagannathan v. State, MANU/TN/0425/1983. Hence, in view of the
constitutional provision of Article 22(2), the submission of the learned counsel that the person
arrested under the Customs Act should be produced before a Magistrate without any interval of
time from the moment the arrest is effected, has to fail.
53. At this juncture, we feel that it will not be out of place to mention here that the individuals
and the organised Gangs indulging in smuggling activities by adopting devious ways and
means, dangerously do ruin the economy of our country. Needless to say, this kind of offences
which assumes dangerous magnitude, gravity and seriousness, are perpetrated secretly,
dexterously and designedly by the anti-social elements, who are incorrigible and hardened
criminals, and as such it would be difficult, if not impossible, to get direct evidence of proof in
all cases of this nature. There cannot be a second opinion that this kind of offences should be
put down sternly. But this does not mean that the Customs Officials can deviate from the legal
path and overstep the legal restraints in their effort to curb the activities of the individuals
believed to be engaged in committing criminal offences, and act in unbridled manner according
to their whims and fancies on an assumption that their powers are unlimited and they are free
to adopt any arbitrary, fantastic and oppressive procedures which will result in the abuse of
their powers. Sometimes, the Courts are pained to note that even the guardians of law
themselves act in violent disobedience and with supine indifference of the rule of law, and
contemptuously treat even the innocent by dubbing them as wrong-doers. It is true that the
procedural law protects the legal rights of the suspected offender by placing numerous
restraints on the power of the Police or the Customs Officials, as the case may be, but it is felt
by many that the safeguards are too often proved to be a myth rather than a reality. At the
same time, one should not lose sight of the fact that as often as not, even a maker of a
confessional statement incriminating himself to an authority in law, when it is given in evidence
in a proceeding against that maker, turns round and complains that such a confessional
statement was extracted by threats or was made up or was framed, and seeks to discredit the
guardians of law. On many occasions, when law-breakers are arrested, they make wild
allegations, and shout from roof top 'police brutality' or 'customs brutality', which are nothing
but cat-calls. Therefore, the Customs Officials when acting under the provisions of the Customs
Act should see that the procedural safeguards which are the indispensable essence of the liberty
of a citizen are not impaired in any manner.
54. In the result, the five questions formulated in the preface to this judgment for consideration
of this reference are all answered as indicated above, for the reasons assigned. In the light of
the views expressed above, all these writ petitions are relegated back to the Division Bench
exercising writ jurisdiction to consider each of the writ petitions on its merits and dispose of the
same in the light of this judgment.
55. Mr. Kareem, in addition to the questions of law referred to us, would like to raise, and in
fact, raised two other questions to be decided by this Full Bench, viz. (1) that since there are no
well defined and guided procedures established by law, in conformity with human dignity, with
regard to the mode of enquiry under Section 108 of the Customs Act, and on the other hand,
the vagueness of the expression used in the section confers uncontrolled discretion on the
executive to expand the horizon of their power to the detriment of the liberty of the subject,
Section 108 must be held as violative of Article 21 of the Constitution, and as such ultra vires;
and (2) that the person summoned for enquiry, either under S. 107 or Section 108 of the
Customs Act, should be afforded legal assistance, and if he has been denied the assistance of a
counsel, it is violative of the fundamental rights enshrined in the Constitution and as
adumbrated in Nandini Satpathy's case, MANU/SC/0139/1978 : 1978CriLJ968 . The question
referred to this Bench is limited only with regard to the mode of arrest and hence the scope of
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the reference cannot be extended or widened to take in all other questions not related to the
specific reference. Hence, we are not inclined to go into the merits of these two submissions
made by the learned counsel. Incidental, we may state that a similar contention with regard to
the assistance of a counsel was raised before Mohan, J. in W.M.P. 6671 of 1983 in W.P. No.
4447 of 1983 (K. Srinivasan v. The Collector of Customs), and such a contention was repelled.
As against this, an appeal was preferred before the Hon'ble the Chief Justice and Padmanabhan,
J. in Writ Appln. No. 501 of 1983, which was also dismissed. It is brought to our notice that an
appeal has been filed against the judgment in Writ Appln. No. 501 of 1983 before the Supreme
Court in Petition for Special Leave to Appeal (Civil) No. 8835 of 1983 and the same is pending
for final decision before the Supreme Court.
56. Before parting with this judgment, we feel that we would be failing in our duty if we do not
place on record our appreciation of the valuable services rendered by the learned Advocate
General, Mr. M. R. M. Abdul Kareem, Mr. P. M. Jumma Khan, Mr. K. Rangavajjula, Mr. P.
Rajamanickam (the learned Public Prosecutor) and Mr. R. Thiagarajan (the learned Senior
Central Government Standing Counsel) for their excellent preparation and presentation of the
case and for their lucid analysis and masterly presentation of the various propositions of law
touching on this point, which have been of immense help to us in rendering this judgment.
57. Reference answered accordingly.
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MANU/TN/0028/1983

Equivalent Citation: 1984(15)ELT289(Mad.)

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"631. Meaning of Arrest : Arrest consists of the actual seizure or

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above conditions for invoking Article 20(3) is not in dispute.

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Rajamanickam, the learned Public Prosecutor, there is no question of surveillance, official or

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(2) Should actually confine the body of the person to be arrested."

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