The division bench of the Kerala High Court, in Kishin S.Loungani v. Union of India & Anr, held that registration of FIR is not necessary before arresting a person under Section 104 of the Customs Act. The bench further clarified that sections 154 to 157 and Section 173(2) of the Code of Criminal Procedure do not apply to a case under the Customs Act, 1962.
The bench was hearing a writ petition filed by the petitioner for the issue of a writ of habeas corpus directing release of the petitioner from custody pursuant to an arrest and detention for violation of the provisions of the Customs Act. Two major questions were involved in the petition.Firstly, whether the provisions of Sections 154 to 157 and 173(2) of the Code of Criminal Procedure would apply in respect of the proceedings under the Customs Act, in view of Section 4(2) of the Cr.P.C. Secondly, whether in respect of offences under Sections 133 to 135 of the Customs Act registration of FIR is compulsory before the person concerned is arrested and produced before the Magistrate.
The Revenue contended that under the Scheme of Section 104 of the Customs Act, a Customs Officer is invested with certain powers which a police officer has under the Code of Criminal Procedure. Such powers are conferred upon the officer only for the purpose of releasing a person on bail or otherwise. It was contended that a person can be arrested immediately for the violation of any provisions of the Customs Act and there is no need to register a FIR. For the Revenue, it was vehemently contended that any such interpretation contrary to the same would defeat the very purpose of the Customs Act.
The division bench comprising of Justice K.T Sankaran and Justice Raja Vijayaraghavan analyzed all the relevant provisions of the Customs Act and the Criminal Procedure Code and noted that under Section 154 of the Code of Criminal Procedure, every information relating to the commission of a cognizable offence, if given to an officer in charge of a police station, shall be reduced to writing and shall be entered in a book to be kept by such officer in such form as the State Government may prescribe. On the other hand, Sections 104, 105 and 106 of the Customs Act empowers the officer to arrest, search of premises and search of conveyances only if there is “has reason to believe” so.
“Going by the Scheme of the Customs Act, a search or seizure or arrest of a person need not necessarily lead to the prosecution of the person concerned. It may end in confiscation of the goods, imposing a penalty in adjudication proceedings or it may end up in compounding of the offence. Only in a very few cases detected, it may end in prosecution of the offender. The machinery under the Customs Act is intended to check evasion of duty, smuggling and other activities which would affect the economic stability of the country, whereas an offence under the Indian Penal Code or other penal statutes may, generally speaking, affect an individual or a group of persons. The Customs Act deals with such offences which affect the State, whereas most of the offences under the Indian Penal Code and other penal statutes have impact on an individual or a group of individuals. The prosecuting agency in respect of anoffence under the Indian Penal Code is the State. The aggrievedparty may initiate prosecution as provided under the Code of Criminal Procedure. When the State is the prosecuting agency, the interest of the victim or other aggrieved person is safeguarded by the State. The redressal of the grievances by the victim or other aggrieved person is by providing punishment to the accused who committed the crime. In the case of an offence under the Customs Act, the aggrieved being the State and the offence being against the State, the State need not resort to prosecution in all cases. For every violation under the Customs Act, if First Information Report is to be registered and a final report is to be filed before the Court concerned, it would not serve the purpose for which the Act is intended. As stated earlier, only a very few out of several violations may lead to prosecution of the offender. Most of the cases would end in other measures under the Customs Act.”
It was observed that insisting registration of FIR under the Customs Act would be against the spirit of the Act. According to the bench, the machinery provided under the Customs Act would be paralyzedand the people against whom violation is alleged would also be put to great trouble if FIR is to be registered for every violation
“The course of action to be adopted in different situations is to be decided at the discretion of the officers empowered under the Customs Act. There is built in safeguard for monitoring the situation in the different types of cases. If cognizance is to be taken in respect of an offence under Sections 132, 133, 134, 135 or 135A, previous sanction of the Principal Commissioner of Customs or the Commissioner of Customs is necessary. This is also a safeguard in favour of the person against whom the prosecution is launched under the Customs Act. Every offence under the aforesaid Sections, as a matter of course, does not lead to prosecution. Only if sanction is granted, a prosecution can be launched against an offender under the aforesaid sections.”
It was further noted that report submitted by a customs officer after collecting all the materials with respect to the offence is not expected to file a final report before Court, as provided under Section 173(2) of Cr.P.C. “What is to be done by the officer of the Customs is to file a complaint before the Court concerned, going by the Scheme of the Customs Act. When a matter comes up before Court by way of prosecution, the procedure under the Cr.P.C. would apply to the extent it applies. The complaint filed by the officer under the Customs Act comes under Section 190 (1)(a) of Cr.P.C. and for the purpose of Section 200 of Cr.P.C., it shall be a complaint made in writing by a public servant acting or purporting to act in the discharge of his official duties.”
Read the full text of the Judgment below.
