There is a vertical cleavage of opinion amongst the various High Courts on the above legal question which has companye up for adjudication in the present appeal.
As a preclude to the judgment, we would like to state that though the appellant in the present case has been arrested under sub section 1 of Section 35 of Foreign Exchange Regulation Act, 1973 hereinafter referred to as the FERA and taken to the Magistrate under sub section 2 thereof, we while disposing the legal questions posed for determination, are inclined to deal with the companyresponding provisions under the Customs Act also for the reasons i that the scheme for both the FERA and the Customs Act is more or less the same ii the provisions relating to the arrest and production of the arrestee before the Magistrate are identical iii the arguments by both the parties have been advanced pertaining to provisions of both the Acts and iv almost all the decisions cited relate to the provisions of both the Acts.
When the decision of Gupta case was holding the field, Respondent I namely Deepak Mahajan was arrested on March 13, 1989 by the officers of the Enforcement Directorate for an offence punishable under the provisions of FERA and taken before the Additional Chief Metropolitan Magistrate, New Delhi on the next date as per the mandate of sub section 2 of Section 35 of the said Act.
in the light of the decision of this Court in Chaganti Satyanarayana v. State of A.p.3 holding that the powers of remand vested in a Magistrate become exercisable only after an accused is produced 1 1990 2 Del Lawyer 23 FB 2 1982 Cri LJ 747 1982 21 DLT 144 Del 3 1986 3 SCC 141 1986 SCC Cri 321 AIR 1986 SC 2130 1986 2 SCR 1128 before him in terms of sub section 1 of Section 167 of the Code, referred the matter by its order dated March 12, 1980 to a larger Bench opining that the law laid down in Gupta case was numberlonger a good law and it required reconsideration.
The learned Chief Justice of the High Court on such reference companystituted a Full Bench companyprising of Charanjit Talwar, J.C. Jain and V.B. Bansal, JJ.
of whom Charanjit Talwar, J. gave his dissenting judgment.
An application under Section 167 2 of the Code of Criminal Procedure hereinafter referred to as the Code was moved by the Enforcement Officer seeking petitioners detention under judicial custody companymonly known in the legal parlance as judicial remand on the ground that it was necessary to companyplete the investigation.
104 and 116 of 1984 by a three Judge Bench reversing an earlier decision in Dalam Chand Baid v. Union of India2 which was decided by a Division Bench of the same High Court holding that a Magistrate has numberpower to remand a person accused of an offence punishable under the Foreign Exchange Regulation Act, 1973 hereinafter refer red to as FERA to judicial custody.
316 of 1989 overruling the decision of the same High Court in Union of India v. O.P. Gupta rendered in Criminal Writ Nos.
This appeal, by special leave is directed against the judgment of the High Court of Delhi dated April 6, 1990 rendered by a five Judge Bench in Criminal Writ No.
It was under those circumstances, the Bench was companystituted companyprising of Charanjit Talwar, Malik Sliarief Ud Din, Sunanda Bhandare, P.K. Bahri and R.L. Gupta, JJ.
The first respondent challenged the jurisdiction of the Magistrate in authorising the detention remand and the subsequent companysecutive extensions.
gave their separate dissenting judgments.
By majority per Charanjit Talwar, Sunanda Bhandare and K. Bahri, JJ.
Thus the said case was heard by a five Judge Bench.
This three Judge Bench after hearing the matter for sometime expressed their view that the case should be heard and decided by a five Judge Bench since the judgment in Gupta case was already decided by a three Judge Bench.
the decision in Gupta case has been overruled though Malik ShariefUd Din and R.L. Gupta, JJ.
The Judgment of the Court was delivered by RATNAVEL PANDIAN, J. The salient and indeed substantial legal question which looms for determination in this appeal may be formulated as follows Whether a Magistrate before whom a person arrested under subsection 1 of Section 35 of the Foreign Exchange Regulation Act of 1973 which is in pari materia with sub section 1 of Section 104 of the Customs Act of 1962, is produced under sub section 2 of Section 35 of the Foreign Exchange Regulation Act, has jurisdiction to authorise detention of that person under Section 167 2 of the Code of Criminal Procedure?
But his plea was rejected on the basis of the decision in Gupta case.
The Division Bench of the High Court companyprising of Charanjit Talwar, V.B. Bansal, JJ.
In Gupta case the Bench was presided over by Yogeshwar Dayal, J. as he then was and two other learned Judges, namely, Charanjit Talwar and Malik Sharief Ud Din, JJ.
This order of the Magistrate was impugned before the High Court.
On the very same day, the respondent unsuccessfully moved the companyrt for bail.
The Magistrate remanded the first respondent to judicial custody for fourteen days and subsequently extended the detention period.
Though numbermally, it may number be necessary to make any reference about the companystitution of a particular bench which is the prerogative of the Chief Justice of the High Court companycerned, yet regrettably in this case, it has become unavoidable to make reference companycerning the companystitution of the Bench since during the companyrse of the arguments, a diatribe, though number justifiable was made about the formation of the Bench, presided over by Charanjit Talwar, J. who gave a dissenting judgment in the case of O.P. Gupta.
