TIOL-DDT 295 · the untouched capture
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<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> <b><font color="#663399" size="3">TIOL-DDT
295</font><br>
02 02 2006<br>
Thursday</b></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif">
<b>Can a Customs/Central Excise officer arrest without warrant?</b></font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">First of all
certain issues are to be clearly understood. First point is who can be arrested?<br>
<br>
Section 104 of the Customs Act dealing with arrests reads as<br>
<br>
<b>Power to arrest. </b>– (1) If an officer of customs empowered in
this behalf by general or special order of the Commissioner of Customs <b>has
reason to believe</b> that any person in India or within the Indian Customs
waters <b>has been guilty of an offence punishable under section 135,</b>
he may arrest such person and shall, as soon as may be, inform him of the
grounds for such arrest.<br>
<br>
(2) Every person arrested under sub-section (1) shall, without unnecessary
delay, be taken to a magistrate.<br>
<br>
(3) Where an officer of customs has arrested any person under sub-section
(1), he shall, for the purpose of releasing such person on bail or otherwise,
have the same powers and be subject to the same provisions as the officer-in-charge
of a police-station has and is subject to under the Code of Criminal Procedure,
1898 (5 of 1898).<br>
<br>
(4) Notwithstanding anything contained in the Code of Criminal Procedure,
1898 (5 of 1898), <b>an offence under this Act shall not be cognizable</b>.<br>
<br>
So under the Customs Act, any person can be arrested if the officer has reason
to believe that the person is liable for punishment under the Act.<br>
<br>
Similarly section 13 under Central Excise reads,<br>
<br>
<b>Power to arrest.-</b> (1) Any Central Excise Officer duly empowered
by the Central Government in this behalf <b>may arrest any person</b> whom
he has <b>reason to believe to be liable to punishment under this Act.</b><br>
<br>
(2) Any person accused or reasonably suspected of committing an offence under
this Act or any rules made thereunder, who on demand of any officer duly empowered
by the Central Government in this behalf, <b>refuses to give his name and
residence, or who gives a name or residence which such officer has reason
to believe to be false,</b> may be arrested by such officer in order that
his name and residence may be ascertained.<br>
<br>
Under Central Excise also any person who is reasonably believed to be liable
for punishment under the Act can be arrested. Further in Central Excise a
person refusing to give his name and residence can also be arrested.<br>
<br>
Now the big question is : <b>Does the Central Excise / Customs officer need
a warrant to arrest?</b><br>
<br>
To answer this question, we need to understand another concept – cognizable
and non cognizable offence. Section 2(l) of the Cr.P.C defines non cognizable
offence as,<br>
<br>
(l)<b>"non-cognizable offence"</b> means an offence for which, and
"non-cognizable case" means a case in which, a <b>police officer</b>
has no authority to arrest without warrant;<br>
<br>
As per Section 104(4) of the Customs Act and Section 9A of the Central Excise
Act, not withstanding anything said in the Cr.P.C, an offence under the Customs
Act or the Central Excise Act is non cognizable. And non cognizable offences,
as we have seen are offences for which a police officer cannot arrest without
warrant. As the offences under Customs and Excise are non cognizable, the
question is “can a Customs officer arrest without warrant?”<br>
<br>
We have been confronted with this question recently by a concerned assessee.
Referring to our story on “Killer Kolkotta Customs” which we carried
more than four months ago, the netizen asked us,<br>
<br>
<font color="#663399"> You say that the Customs officers have the power to
arrest. Yes, they do ; but only AFTER they get a warrant of arrest from a
Magistrate. If there are any doubts in this regard, please see the Customs
Act (and the Excise Act) which clearly state that notwithstanding anything
contained in the Act,all offences are non-cognizable ; then, please see the
CrPC, which says that for all offences that are non-cognizable, arrest can
only be carried out after obtaining a warrant from a Magistrate. And in support
of this, pls see the judgement of the Allahabad High Court in <b>Rajni vs.
UOI</b> (</font><font size="1" face="Verdana, Arial, Helvetica, sans-serif"><a href="http://www.taxindiaonline.com/RC2/subCatDesc.php3?subCatDisp_Id=33&filename=legal/hc/2003/2003-TIOL-134-HC-ALL-CX.htm">2003-TIOL-134-HC-ALL-CX</a></font><font color="#663399">)
in which the High Court has clearly stated that no warrant from Magistrate
= no power to arrest.The Deptt went into appeal aganst this judgement to the
Supreme Court, who has refused to grant an ad interim stay to the Deptt against
the operation of the judgement of the Allahabad High Court.<br>
<br>
So, in light of this, why allow further propagation of the myth that they
have the powers to arrest (implying, arrest without warrant)?</font></font></p>
<p align="right"><font color="#663399" size="2" face="Verdana, Arial, Helvetica, sans-serif">
A concerned assessee.</font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif"> First of all
we would like to clarify that the Rajni case did not hold that the Central
Excise officers have no power to arrest without warrant. In fact it refused
to quash the arrest and refused to issue a direction to the authorities not
to arrest the petitioner. The Court actually observed, <font color="#663399">“it
is apparent that the authorities have no power under the Excise Act to arrest
anybody <b>except</b> in the cases as prescribed under Section 13 of the said
Act, as enumerated in sub-clause (2) of Section 13 of the said Act. On completion
of the en-quiry they have also power to file a complaint and pray before the
Court for action in accordance with law.”</font><br>
<br>
So the position is that offences under excise and customs are non cognizable
and for a non cognizable offence, a police officer cannot arrest without a
warrant. But here lies the trick. A customs/Central Excise officer being not
a police officer is not hit by this bar and he can happily arrest without
a warrant. This position has been nicely elucidated by the Punjab and Haryana
High Court in SUNIL GUPTA Versus UNION OF INDIA in Civil Writ Petition No.
1647 of 1999, decided on 7-4-1999. A few extracts from the classic judgement
will make the issue clear.</font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ Section 9A
introduces a fiction. As a result, the offences under Section 9 are deemed
to be non- cognizable. Section 13 authorises “any Central Excise Officer
duly empowered by the Central Government in this behalf” to “arrest
any person whom he has reason to believe to be liable to punishable under
this Act.” This provision embodies a substantive power and authorises
the competent officer to arrest a person if he has some reason to believe
that the person is liable to be punished under the Act.<br>
<br>
++ A substantive power to arrest has been conferred under Section 13.<br>
<br>
++ Section 18 requires that arrest made under this Act shall be carried out
in accordance with the provisions of the Code of Criminal Procedure......”
Thus, no arrest can be made by an officer of the Central Excise except by
following the procedure applicable to the cases involving non-cognizable offences
under the Code of Criminal Procedure. Is it so?<br>
<br>
++ In terms of the provisions of Section 2(c) of the Code of Criminal Procedure,
a cognizable offence is one “for which........ a police officer may.....
arrest without warrant.” Similarly, according to Section 2(1), a non-cognizable
offence is that “for which ......... a police officer has no authority
to arrest without warrant.” Despite the fact that punishment for offences
under Section 9 can extend to imprisonment for seven years, these are deemed
to be non-cognizable within the meaning of Code of Criminal Procedure. When
the provisions are literally construed, the implication is merely that a police
officer shall not be able to arrest a person who has committed an offence
under Section 9 without a warrant. However, the provision does not say that
an <b>“Excise Officer shall be debarred from arresting a person who
has committed an offence under Section 9 without a warrant.”</b> Section
9A merely imports the provision of Section 2(1) of the Code of Criminal Procedure
into the Act and imposes a restriction on the power of the police officer.
The authorised officer of the Central Excise being different from a police
officer, such an embargo has not been placed by the Parliament on him. Otherwise,
the legislature could have clearly said that no person who has committed an
offence under Section 9 shall be arrested without a warrant by any one. It
does not say so. The omission is not without significance.<br>
<br>
++ Section 13 embodies a substantive power. It confers the power to arrest.
The procedural safeguards have been protected by Section 18. This provision
merely regulates the exercise of power under Section 13. It only provides
that the searches and arrests under the Central Excise Act “shall be
carried out in accordance with the provisions of the Code of Criminal Procedure.....”
In other words, an officer of the Central Excise shall make the arrest in
‘the manner laid down in Section 46 of the Code of Criminal Procedure......
He “shall actually touch or confine the body of the person to be arrested.....”
In case of resistance, the officer of the Central Excise “may use all
means necessary to effect the arrest.” The persons arrested “shall
not be subjected to more restraint than is necessary to prevent his escape.
In a nut shell, the procedural protection contained in the Code of Criminal
Procedure has been guaranteed even in case of arrests and searches under the
Central Excise Act, 1944. <b>No more.</b></font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">++ <b>Is an arrest
without warrant barred?</b> On an examination of the provisions, we are of
the view that <b>it is not so.. We hold that an officer of the department
of Central Excise who has been duly authorised by the Central Government is
not debarred from arresting a person without a warrant</b> when he has reason
to believe that the person is liable to be punished under the Central, Excise
Act, 1944.<br>
<br>
That’s all about it. It is amply clear that as Customs and excise officers
are not police officers <b>they can arrest without warrant</b>.<br>
<br>
<b>What happens after the arrest?</b><br>
<br>
<b>DDT</b> would like to pose two questions for your weekend entertainment.<br>
<br>
1. What is a non bailable offence? And is an offence under Customs/excise
non bailable?<br>
<br>
2. Who can grant bail for an offence under these statutes?<br>
<br>
Please mail your answers latest by Sunday evening to <a href="vijaywrite@taxindiaonline.com">vijaywrite@taxindiaonline.com</a></font></p>
<p align="center"><font color="#006600" size="2" face="Verdana, Arial, Helvetica, sans-serif"><b>Greek
and Latin - DDT's new feature</b></font></p>
<p><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Today’s
phrase: <b><i><font color="#663399">desuetude</font></i></b>. A learned friend
asked me to give pronunciation of the words and phrases covered in this feature
– They are to be pronounced in a court – after all. While I am
not sure of the pronunciation of many English words, let alone Latin, I will
try to give the pronunciation whenever I am reasonably sure. This word is
pronounced as ‘des wi tyud’ and it is legal process by which through
disobedience and lack of enforcement over a long period of time, a statute
may lose its force without express or implied repeal by the Government. In
a recent case in the Delhi High Court it was argued that the bar of employing
women in places where liquor was consumed was <b>desuetude</b>. It is what
happens to un-repealed laws when they become obsolete.<br>
<br>
Now have a look at Section 20 of the Factories Act,<br>
<br>
<b>SPITTOONS -</b> (1) In every factory there shall be provided a sufficient
number of spittoons in convenient places and they shall be maintained in a
clean and hygienic condition.<br>
<br>
(2) The State Government may make rules prescribing the type and the number
of spittoons to be provided and their location in any factory and provide
for such further matters relating to their maintenance in a clean and hygienic
condition.<br>
<br>
(3) No person shall spit within the premises of a factory except in the spittoons
provided for the purpose and a notice containing this provision and the penalty
for its violation shall be prominently displayed at suitable places in the
premises.<br>
<br>
(4) Whoever spits in contravention of sub-section (3) shall be punishable
with fine not exceeding five rupees.<br>
<br>
<b><font color="#663399">For the sceptic there remains only one consolation:
if there should be such a thing as superhuman law it is administered with
subhuman inefficiency.</font></b></font></p>
<p align="right"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">
<i>Eric Ambler</i></font></p>
<p align="left"><font size="2" face="Verdana, Arial, Helvetica, sans-serif">
<font color="#FF6666"><b>Until tomorrow with more DDT</b></font></font></p>
<p align="left"><font color="#FF6666"><b><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Have
a nice day.</font></b></font></p>
<p align="left"><font color="#FF6666"><b><font size="2" face="Verdana, Arial, Helvetica, sans-serif">Mail
your comments to</font></b></font><font size="2" face="Verdana, Arial, Helvetica, sans-serif">
<a href="vijaywrite@taxindiaonline.com">vijaywrite@taxindiaonline.com </a></font>
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