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since all offences under the Central Excise Act, 1944 and the Customs Act, 1962, are non-cognizable, are such =Consequently, as in the case of offences under the Central Excise Act, 1944, it is held that offences under Section 135 of the Customs Act, 1962, are bailable and if the person arrested offers bail, he shall be released on bail in accordance with the provisions of sub-Section (3) of Section 104 of the Customs Act, 1962, if not wanted in connection with any other offence.

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 REPORTABLE

 IN THE SUPREME COURT OF INDIA

 CRIMINAL ORIGINAL JURISDICTION

 WRIT PETITION (CRL.) NO.66 OF 2011

Om Prakash & Anr. ... Petitioners

 Vs.

Union of India & Anr. ... Respondents

 WITH

 WRIT PETITION (CRL.) NO.85 OF 2010 AND WRIT 

 PETITION (CRL.) NOS.74, 87, 101 & 102 OF 2011

 AND

 WRIT PETITION (CRL.) NO.74 OF 2010

Choith Nanikram Harchandani ... Petitioner 

 Vs.

Union of India & Ors. ... Respondents

 2

 WITH

WRIT PETITION (CRL) NOS.36, 37, 51, 76 & 84 OF 2011

 AND 

 CRL.MP NO.10673 OF 2011 IN WP (CRL) NO.76 OF 2011 

 J U D G M E N T

ALTAMAS KABIR,J.

1. Two sets of matters have been heard together, 

one relating to the provisions of the Customs Act, 

1962, and the other involving the provisions of the 

Central Excise Act, 1944, since the issue in both 

sets of matters is the same. The common question 

in these two sets of matters is that since all 

offences under the Central Excise Act, 1944 and the 

Customs Act, 1962, are non-cognizable, are such 

 3

offences bailable? Although, the provisions of 

both the two Acts in this regard are pari materia 

to each other, we shall first take up the matters 

relating to the Central Excise Act, 1944, 

hereinafter referred to as "the 1944 Act", namely, 

(1) Writ Petition (Crl) No.66 of 2011, Om Prakash & 

Anr. Vs. Union of India & Anr., which has been 

heard as the lead case, (2) Writ Petition No.85 of 

2010 and (3) Writ Petition (Crl.) Nos.74, 87, 101 

and 102 of 2011. 

2. Section 9A of the 1944 Act, which was introduced 

in the Act with effect from 1st September, 1972, 

provides that certain offences are to be non-

cognizable. Since we shall be dealing with this 

provision in some detail, the same is extracted 

hereinbelow :-

 4

 "9A. Certain offences to be non-cognizable. - 

 (1) Notwithstanding anything contained in the 

 Code of Criminal Procedure, 1898 (5 of 1898), 

 offences under section 9 shall be deemed to be 

 non-cognizable within the meaning of that Code.

 (2) Any offence under this Chapter may, 

 either before or after the institution of 

 prosecution, be compounded by the Chief 

 Commissioner of Central Excise on payment, by 

 the person accused of the offence to the 

 Central Government, of such compounding amount 

 and in such manner of compounding, as may be 

 prescribed.

 Provided that nothing contained in this 

 sub-section shall apply to -

 (a) a person who has been allowed to compound 

 once in respect of any of the offences 

 under the provisions of clause (a), (b), 

 (bb), (bbb), (bbbb) or (c) of sub-section 

 (1) of Section 9;

 (b)
 a person who has been accused 

 of committing an offence under this Act 

 which is also an offence under the 

 Narcotic Drugs and Psychotropic Substances 

 Act, 1985 (61 of 1985);

 5

 (c) a person who has been allowed to compound 

 once in respect of any offence under this 

 Chapter for goods of value exceeding 

 rupees one crore;

 (d)
 a person who has been 

 convicted by the court under this Act on 

 or after the 30th day of December, 2005."

3. What is important is the non-obstante clause 

with which the Section begins and in very 

categorical terms makes it clear that 

notwithstanding anything contained in the Code of 

Criminal Procedure, offences under Section 9 of the 

1944 Act would be deemed to be non-cognizable 

within the meaning of the Code. In fact, Sub-

section (2) of Section 9A also provides for 

compounding of offences upon payment of the 

compounding amount with the exceptions as mentioned 

in the proviso thereto.

 6

4. Mr. Mukul Rohatgi, learned senior counsel 

appearing for the Petitioners in both sets of 

matters, submitted that since the expressions 

"cognizable" or "non-cognizable" or even "bailable 

offences" had not been defined in either the 1944 

Act or the Customs Act, 1962, one would have to 

refer to the provisions of the Code of Criminal 

Procedure, 1973 (Cr.P.C.) to understand the meaning 

of the said expressions in relation to criminal 

offences. Section 2(a) Cr.P.C. defines "bailable 

offence" as follows :-

 "2(a). "bailable offence" means an offence 

 which is shown as bailable in the First 

 Schedule, or which is made bailable by any 

 other law for the time being in force; and 

 "non-bailable offence" means any other 

 offence;"

 Section 2(c) defines "cognizable offence" as 

follows :-

 "2(c). "cognizable offence" means an offence 

 for which, and "cognizable case" means a case 

 7

 in which, a police officer may, in accordance 

 with the First Schedule or under any other law 

 for the time being in force, arrest without 

 warrant;"

 Section 2(l) defines "non-cognizable offence" 

as follows :-

 "2(l). "non-cognizable offence" means an 

 offence for which, and "non-cognizable case" 

 means a case in which, a police officer has no 

 authority to arrest without warrant;"

5. Mr. Rohatgi then submitted that offences which 

are punishable under the 1944 Act have been 

indicated in Section 9 of the said Act and these 

sets of cases relate to the offences indicated in 

Section 9(1)(d) of the said Act. Section 9(1)(d) 

is again divided into two sub-clauses and reads as 

follows:- 

 "9. Offences and penalties. (1) Whoever commits 

 any of the following offences, namely:-

 (a) to (c) ..............................................................................

 8

 (d) attempts to commit, or abets the commission 

 of, any of the offences mentioned in 

 clauses (a) and (b) of this section; 

 shall be punishable,-

 (i) in the case of an offence relating to any 

 excisable goods, the duty leviable thereon 

 under this Act exceeds one lakh of rupees, 

 with imprisonment for a term which may 

 extend to seven years and with fine: 

 Provided that in the absence of special 

 and adequate reasons to the contrary to be 

 recorded in the judgment of the Court such 

 imprisonment shall not be for a term of less 

 than six months;

 (ii) in any other case, with imprisonment for a 

 term which may extend to three years or 

 with fine or with both."

6. What is of significance is that offences 

covered by clauses (a) and (b) and the subsequent 

amendments thereto relating to any excisable goods, 

where the duty leviable thereon under the Act 

exceeds one lakh of rupees, would be punishable 

with imprisonment for a term which may extend to 

seven years and with fine, whereas under Section 

9(1)(d)(ii), in any other case, the offence would 

 9

be punishable with imprisonment for a term which 

may extend to three years or with fine or with 

both. 

7. Since the question of arrest is in issue in 

these sets of cases, Mr. Rohatgi then referred to 

the provisions of Section 13 of the 1944 Act, which 

deals with the power to arrest in the following 

terms:-

 "13. Power to arrest: - Any Central Excise 

 Officer not below the rank of Inspector of 

 Central Excise may, with the prior approval of 

 the Commissioner of Central Excise, arrest any 

 person whom he has reason to believe to be 

 liable to punishment under this Act or the 

 rules made thereunder."

8. Mr. Rohatgi submitted that the said power would 

have to be read along with Sections 18, 19, 20 and 

21 of the 1944 Act along with Section 155 Cr.P.C. 

Section 18 of the 1944 Act provides for searches 

and how arrests are to be made under the Act and 

rules framed thereunder and reads as follows :-

 10

 "18. Searches and arrests how to be made.-

 All searches made under this Act or any rules 

 made thereunder and all arrests made under this 

 Act shall be carried out in accordance with the 

 provisions of the Code of Criminal Procedure, 

 1973 (2 of 1974), relating respectively to 

 searches and arrests made under that Code."

9. Sections 19, 20 and 21 deal with how a person 

arrested is to be dealt with after his arrest and 

the procedure to be followed by the Officer in-

Charge of the police station concerned to whom any 

person is forwarded under Section 19. For the sake 

of understanding the Scheme, the provisions of 

Sections 19, 20 and 21 of the 1944 Act are 

extracted hereinbelow ad seriatim :- 

 "19. Disposal of persons arrested.- Every 

 person arrested under this Act shall be 

 forwarded without delay to the nearest Central 

 Excise Officer empowered to send persons so 

 arrested to a Magistrate, or, if there is no 

 such Central Excise Officer within a reasonable 

 distance, to the officer-in-charge of the 

 nearest police station.

 20. Procedure to be followed by officer-in-

 charge of police station.- The officer-in-

 charge of a police station to whom any person 

 11

 is forwarded under section 19 shall either 

 admit him to bail to appear before the 

 Magistrate having jurisdiction, or in default 

 of bail forward him in custody to such 

 Magistrate.

 21. Inquiry how to be made by Central Excise 

 Officers against arrested persons forwarded to 

 them under Section 19.-(1) When any person is 

 forwarded under section 19 to a Central Excise 

 Officer empowered to send persons so arrested 

 to a Magistrate, the Central Excise Officer 

 shall proceed to enquire into the charge 

 against him.

 (2) For this purpose, the Central Excise 

 Officer may exercise the same powers and shall 

 be subject to the same provisions as the 

 officer-in-charge of a police station may 

 exercise, and is subject to under the Code of 

 Criminal Procedure, 1898 (5 of 1898), when 

 investigating a cognizable case: 

 Provided that -

 (a) if the Central Excise Officer is of opinion 

 that there is sufficient evidence or reasonable 

 ground of suspicion against the accused person, 

 he shall either admit him to bail to appear 

 before a Magistrate having jurisdiction in the 

 case, or forward him in custody to such 

 Magistrate;

 (b) if it appears to the Central Excise Officer 

 that there is not sufficient evidence or 

 reasonable ground of suspicion against the 

 accused person, he shall release the accused 

 person on his executing a bond, with or without 

 12

 sureties as the Central Excise Officer may 

 direct, to appear, if and when so required, 

 before the Magistrate having jurisdiction, and 

 shall make a full report of all the particulars 

 of the case to his official superior."

10. As indicated in Section 18, all steps taken 

under Sections 19, 20 and 21 would have to be taken 

in accordance with the provisions of the Code of 

Criminal Procedure and the relevant provision 

thereof is Section 155 which deals with information 

as to non-cognizable cases and investigation of 

such cases, since under Section 9A of the 1944 Act 

all offences under the Act are non-cognizable. For 

the sake of reference Section 155 Cr.P.C. is 

extracted hereinbelow :-

 13

 "155. Information as to non-cognizable cases and 

 investigation of such cases.- (1) When 

 information is given to an officer in charge of 

 a police station of the commission within the 

 limits of such station of a non-cognizable 

 offence, he shall enter or cause to be entered 

 the substance of the information in a book to be 

 kept by such officer in such form as the State 

 Government may prescribe in this behalf, and 

 refer, the informant to the Magistrate.

 (2) No police officer shall investigate a non-

 cognizable case without the order of a 

 Magistrate having power to try such case or 

 commit the case for trial.

 (3) Any police officer receiving such order may 

 exercise the same powers in respect of the 

 investigation (except the power to arrest 

 without warrant) as an officer in charge of a 

 police station may exercise in a cognizable 

 case.

 (4) Where a case relates to two or more 

 offences of which at least one is cognizable, 

 the case shall be deemed to be a cognizable 

 case, notwithstanding that the other offences 

 are non-cognizable." 

11. As will be evident from the aforesaid 

provisions of Section 155 Cr.P.C., no police 

officer in charge of a police station is entitled 

to investigate a non-cognizable case without the 

 14

order of a Magistrate having the power to try such 

case or to commit the case for trial. Furthermore, 

no such police officer is entitled to effect arrest 

in a non-cognizable case without a warrant to 

effect such arrest. According to Mr. Rohatgi, 

since all offences under the 1944 Act, irrespective 

of the length of punishment are deemed to be non-

cognizable, the aforesaid provisions would fully 

apply to all such cases. This now brings us to the 

question as to whether all offences under the 1944 

Act are bailable or not. As has been indicated 

hereinbefore in this judgment, Section 2(a) of the 

Code defines "bailable offence" to be an offence 

shown as bailable in the First Schedule to the Code 

or which is made bailable by any other law for the 

time being in force. The First Schedule to the Code 

which deals with classification of offences is in 

two parts. The first part deals with offences under 

the Indian Penal Code, while the second part deals 

 15

with classification of offences in respect of other 

laws. Inasmuch as, the offences relate to the 

offences under the 1944 Act, it is the second part 

of the First Schedule which will have application 

to the cases in hand. The last item in the list of 

offences provides that if the offence is punishable 

with imprisonment for less than three years or with 

fine only, the offence will be non-cognizable and 

bailable. Accordingly, if the offences come under 

the said category, they would be both non-

cognizable as well as bailable offences. However, 

in the case of the 1944 Act, in view of Section 9A, 

all offences under the Act have been made non-

cognizable and having regard to the provisions of 

Section 155, neither could any investigation be 

commenced in such cases, nor could a person be 

arrested in respect of such offence, without a 

warrant for such arrest. 

 16

12. Mr. Rohatgi submitted that Section 20 of the 

1944 Act would also make it clear that the Officer 

in-Charge of a police station to whom any person 

arrested is forwarded under Section 19, shall 

either admit him to bail to appear before the 

Magistrate having jurisdiction, or in default of 

bail forward him in custody to such Magistrate. In 

other words, unless the offence was bailable, the 

Officer in-Charge of the police station would not 

have been vested with the power to admit him to 

bail and to direct him to appear before the 

Magistrate having jurisdiction. Mr. Rohatgi 

pointed out that Section 21 which deals with the 

manner in which the enquiry is to be made by the 

Central Excise Officer against the arrested person 

forwarded to him under Section 19, is similar to 

the procedure prescribed under Section 20. 

13. The submissions made by Mr. Rohatgi will have 

to be considered in the context of the provisions 

 17

of Sections 9A, 13 and 18 to 21 of the 1944 Act and 

Section 155 Cr.P.C.

14. Section 41 of the Code provides the 

circumstances in which a police officer may, 

without an order from a Magistrate and without a 

warrant, arrest any person. What is relevant for 

our purpose are Sub-section (1)(a) and Sub-section 

(2) of Section 41 which are extracted hereinbelow:-

 "41. When police may arrest without warrant.- 

 (1) Any police officer may without an order from 

 a Magistrate and without a warrant, arrest any 

 person-

 (a) Who has been concerned in any cognizable 

 offence, or against whom a reasonable complaint 

 has been made, or credible information has been 

 received, or a reasonable suspicion exists, of 

 his having been so concerned; or

 (b)to (h)...............................................................................................................

 (2) Any officer in charge of a police station 

 may, in like manner, arrest or cause to be 

 arrested any, person, belonging to one or more 

 of the categories of persons specified in 

 section 109 or section 110."

 18

15. An exception to the provisions of Section 41 

has been made in Section 42 of the Code which 

enables a police officer to arrest a person who has 

committed in the presence of such officer or has 

been accused of committing a non-cognizable offence 

refuses, on demand of such officer, to give his 

name and residence or gives a name or residence 

which such officer has reason to believe to be 

false.

16. One other provision of the Code referred to is 

Section 46 which deals with how arrests are to be 

made. The same merely provides the procedure for 

effecting the arrest for which purpose the officer 

or other person making the same shall actually 

touch or confine the body of the person to be 

arrested. The said provision is not really material 

for a determination of the issues in this case and 

need not detain us. 

 19

17. In this connection, Section 436 Cr.P.C. which 

provides in what cases bail could be taken, may be 

taken note of. The said Section provides as under:-

 "436. In what cases bail to be taken.-(1) When 

 any person other than a person accused of a non-

 bailable offence is arrested or detained without 

 warrant by an officer in charge of a police 

 station, or appears or is brought before a 

 court, and is prepared at any time while in the 

 custody of such officer or at any stage of the 

 proceeding before such court to give bail, such 

 person shall be released on bail:

 Provided that such officer or court, if he 

 or it thinks fit, may, instead of taking bail 

 from such person, discharge him on his 

 executing a bond without sureties for his 

 appearance as hereinafter provided:

 Provided further that nothing in this 

 section shall be deemed to affect the 

 provisions of sub-section (3) of section 116 

 [or section 446A].

 (2) Notwithstanding anything contained in sub-

 section (1), where a person has failed to 

 comply with the conditions of the bail-bond as 

 regards the time and place of attendance, the 

 court may refuse to release him on bail, when 

 on a subsequent occasion in the same case he 

 appears before the court or is brought in 

 custody and any such refusal shall be without 

 prejudice to the powers of the court to call 

 20

 upon any person bound by such bond to pay the 

 penalty thereof under section 446."

 As will be evident from the above, when any 

person, other than a person accused of a non-

bailable offence, is arrested or detained without 

warrant by an Officer in-Charge of a police 

station, or is brought before a Court, and is 

prepared at any time while in the custody of such 

officer or at any stage of the proceeding before a 

Court to give bail, he shall be released on bail. 

In other words, in respect of a non-cognizable 

case, a person who is arrested without warrant 

shall be released on bail if he is prepared to give 

bail. The scheme of the Section is that without a 

warrant, if a person is arrested by the Officer in-

Charge of a police station or if such person is 

brought before the Court, he is entitled to be 

released on bail, either by the police officer, or 

the Court concerned.

 21

18. The legal contentions indicated hereinabove 

were opposed on behalf of the Union of India and 

the stand taken by Mr. Mohan Parasaran, learned 

Additional Solicitor General, was that what was 

required to be considered in the Writ Petitions was 

whether there is a power to arrest vested in the 

officers exercising powers under Section 13 of the 

1944 Act without issuance of a warrant and whether 

such power could be exercised only after an 

FIR/complaint had been lodged under Section 13 of 

the aforesaid Act. It was also contended that it 

was necessary to consider further whether criminal 

prosecution or investigation could be initiated, 

which could lead to arrest, without final 

adjudication of a dual liability. The last 

contention raised was whether offences referred to 

in Section 9(1)(d)(i) of the 1944 Act were bailable 

or not on account of the fact that in the said Act 

by a deeming fiction all offences under the 

 22

respective Sections are deemed to be non-

cognizable. Mr. Parasaran pointed out that the 

Preamble to the 1944 Act states that it is 

expedient to consolidate and amend the law relating 

to central excise duty on goods manufactured or 

produced in certain parts of India. Under the Act 

it is the duty of the officers to ensure that duty 

is not evaded and persons who attempt to evade duty 

are proceeded against. The learned Additional 

Solicitor General submitted that wide powers have 

been conferred on the Officers under the Act to 

enable them to discharge their duties in an 

effective manner, though not for the purpose of 

prevention and detection of crime, but to prevent 

smuggling of goods or clandestine removal thereof 

and for due realization of excise duties. It was 

also urged that the Officers under the said Act are 

not police officers and that the said question is 

no longer res integra. Consequently, in Ramesh 

 23

Chandra Mehta Vs. State of West Bengal [AIR 1970 SC 

940], a Constitution Bench of this Court held that 

since a customs officer is not a police officer, as 

would also be the case in respect of an officer 

under the Excise Act, submissions made before him 

would not be covered under Section 25 of the 

Evidence Act. 

19. Mr. Prasaran submitted that the High Court had 

also made a distinction on the basis that while 

Section 13 of the 1944 Act refers to a "person" and 

not to an "accused" or "accused person", the power 

under the Central Excise Act is for arrest of any 

person who is suspected of having committed an 

offence and is not an accused, but is a person who 

would become an accused after the filing of a 

complaint or lodging of an FIR, as was held by this 

Court in the case of Directorate of Enforcement Vs. 

Deepak Mahajan [(1994) 3 SCC 440]. The learned ASG 

submitted that although under the powers reserved 

 24

under the Customs Act and the Excise Act to a 

Customs Officer or a Central Excise Officer, as the 

case may be, the said Officer would be entitled to 

exercise powers akin to that of a police officer, 

but that did not mean that such officers are police 

officers in the eyes of law. The said officers had 

no authority or power to file an investigation 

report under Section 173 Cr.P.C. and in all cases 

the officer concerned has to produce the suspect 

before the Magistrate after investigation for the 

purpose of remand. The learned ASG submitted that 

only on the filing of a complaint, can the criminal 

law be set in motion. 

20. Mr. Prasaran also urged that the power to 

arrest must necessarily be vested in the Officer 

concerned under the 1944 Act for the efficient 

discharge of his functions and duties, inter alia, 

in order to prevent and tackle the menace of black 

money and money laundering. Mr. Prasaran submitted 

 25

that in Union of India Vs. Padam Narian Aggarwal 

[2008 (231) ELT 397(SC)], this Court had held that 

even though personal liberty is taken away, there 

are norms and guidelines providing safeguards so 

that such a power is not abused, but is exercised 

on objective facts with regard to commission of any 

offence. Reference was also made to the decision 

of the Punjab & Haryana High Court in Sunil Gupta 

Vs. Union of India [2000 (118) ELT 8 P&H] and 

Bhavin Impex Pvt. Ltd. Vs. State of Gujarat[2010 

(260) ELT 526 (Guj)], in which the issue, which is 

exactly in issue in the present case, was 

considered and, as submitted by the learned ASG, it 

has been held that the FIR or complaint or warrant 

is not a necessary pre-condition for an Officer 

under the Act to exercise powers of arrest. It was 

also submitted that the Petitioners had nowhere 

questioned the vires of the Section granting power 

to investigate to the Officer under the Act as 

 26

being unconstitutional and ultra vires and as such 

in case of any mistake or illegality in the 

exercise of such statutory powers, the affected 

persons would always have recourse to the Courts. 

21. Coming to the question of the provisions of 

Section 9A of the 1944 Act wherein in Sub-section 

(1) it has been clearly mentioned that 

notwithstanding anything contained in the Code of 

Criminal Procedure, offences under Section 9 shall 

be deemed to be non-cognizable within the meaning 

of the Code, the learned ASG submitted that the 

aforesaid Section does not state anything as to 

whether such offences are also bailable or not. It 

was contended that if the submissions made by Mr. 

Rohatgi on this point were to be accepted, it would 

mean that all offences under Section 9, including 

offences punishable with imprisonment upto seven 

years, would also be bailable, which could not have 

been the intention of the legislators enacting the 

 27

1944 Act. Mr. Prasaran submitted that the 

provisions of Section 9A of the 1944 Act merely 

import the provisions of Section 2(i) Cr.P.C., 

thereby debarring a "police officer" from arresting 

a person without warrant for an offence under the 

Act. It was submitted that Section 9A does not 

refer to a Central Excise Officer and as such there 

is no embargo on an Officer under the 1944 Act from 

arresting a person. 

22. Mr. Prasaran's next submission was with regard 

to the provisions of part 2 of the First Schedule 

to the Code of Criminal Procedure and it was 

submitted that the same has to be given a 

meaningful interpretation. It was urged that 

merely because a discretion had been given to the 

Magistrate to award punishment of less than three 

years, it must fall under the third head of the 

said Schedule and, therefore, be non-cognizable and 

bailable. On the other hand, as long as the 

 28

Magistrate had the power to sentence a person for 

imprisonment of three years or more, 

notwithstanding the fact that he has discretion to 

provide a sentence of less than three year, the 

same will make the offence fall under the second 

head thereby making such offence non-bailable. It 

was submitted that in essence it is the maximum 

punishment which has to determine the head under 

which the offence falls in Part 2 of the First 

Schedule to the Code and not the use of discretion 

by the Magistrate to award a lesser sentence. 

23. In support of his submissions, Mr. Prasaran 

referred to the decisions of this Court in 

Superintendent of Police, CBI & Ors. Vs. Tapan 

Kumar Singh [(2003) 6 SCC 175] and Bhupinder Singh 

Vs. Jarnail Singh [(2006) 6 SCC 207], to which 

reference will be made, if necessary.

 29

24. As we have indicated in the first paragraph of 

this judgment, the question which we are required 

to answer in this batch of matters relating to the 

Central Excise Act, 1944, is whether all offences 

under the said Act are non-cognizable and, if so, 

whether such offences are bailable? In order to 

answer the said question, it would be necessary to 

first of all look into the provisions of the said 

Act on the said question. Sub-section (1) of 

Section 9A, which has been extracted hereinbefore, 

states in completely unambiguous terms that 

notwithstanding anything contained in the Code of 

Criminal Procedure, offences under Section 9 shall 

be deemed to be non-cognizable within the meaning 

of that Code. There is, therefore, no scope to 

hold otherwise. It is in the said context that we 

will have to consider the submissions made by Mr. 

Rohatgi that since all offences under Section 9 are 

to be deemed to be non-cognizable within the 

 30

meaning of the Code of Criminal Procedure, such 

offences must also be held to be bailable. The 

expression "bailable offence" has been defined in 

Section 2(a) of the Code and set out hereinabove in 

paragraph 3 of the judgment, to mean an offence 

which is either shown to be bailable in the First 

Schedule to the Code or which is made bailable by 

any other law for the time being in force. As 

noticed earlier, the First Schedule to the Code 

consists of Part 1 and Part 2. While Part 1 deals 

with offences under the Indian Penal Code, Part 2 

deals with offences under other laws. Accordingly, 

if the provisions of Part 2 of the First Schedule 

are to be applied, an offence in order to be 

cognizable and bailable would have to be an offence 

which is punishable with imprisonment for less than 

three years or with fine only, being the third item 

under the category of offences indicated in the 

said Part. An offence punishable with imprisonment 

 31

for three years and upwards, but not more than 

seven years, has been shown to be cognizable and 

non-bailable. If, however, all offences under 

Section 9 of the 1944 Act are deemed to be non-

cognizable, then, in such event, even the second 

item of offences in Part 2 could be attracted for 

the purpose of granting bail since, as indicated 

above, all offences under Section 9 of the 1944 Act 

are deemed to be non-cognizable. 

25. This leads us to the next question as to 

meaning of the expression "non-cognizable". 

26. Section 2(i) Cr.P.C. defines a "non-cognizable 

offence", in respect whereof a police officer has 

no authority to arrest without warrant. The said 

definition defines the general rule since even 

under the Code some offences, though "non-

cognizable" have been included in Part I of the 

First Schedule to the Code as being non-bailable. 

 32

For example, Sections 194, 195, 466, 467, 476, 477 

and 505 deal with non-cognizable offences which are 

yet non-bailable. Of course, here we are concerned 

with offences under a specific Statute which falls 

in Part 2 of the First Schedule to the Code. 

However, the language of the Scheme of 1944 Act 

seem to suggest that the main object of the 

enactment of the said Act was the recovery of 

excise duties and not really to punish for 

infringement of its provisions. The introduction 

of Section 9A into the 1944 Act by way of amendment 

reveals the thinking of the legislature that 

offences under the 1944 Act should be non-

cognizable and, therefore, bailable. From Part 1 

of the First Schedule to the Code, it will be clear 

that as a general rule all non-cognizable offences 

are bailable, except those indicated hereinabove. 

The said provisions, which are excluded from the 

normal rule, relate to grave offences which are 

 33

likely to affect the safety and security of the 

nation or lead to a consequence which cannot be 

revoked. One example of such a case would be the 

evidence of a witness on whose false evidence a 

person may be sent to the gallows. 

27. In our view, the definition of "non-cognizable 

offence" in Section 2(l) of the Code makes it clear 

that a non-cognizable offence is an offence for 

which a police officer has no authority to arrest 

without warrant. As we have also noticed 

hereinbefore, the expression "cognizable offence" 

in Section 2(c) of the Code means an offence for 

which a police officer may, in accordance with the 

First Schedule or under any other law for the time 

being in force, arrest without warrant. In other 

words, on a construction of the definitions of the 

different expressions used in the Code and also in 

connected enactments in respect of a non-cognizable 

offence, a police officer, and, in the instant case 

 34

an excise officer, will have no authority to make 

an arrest without obtaining a warrant for the said 

purpose. The same provision is contained in Section 

41 of the Code which specifies when a police 

officer may arrest without order from a Magistrate 

or without warrant. 

28. Having considered the various provisions of the 

Central Excise Act, 1944, and the Code of Criminal 

Procedure, which have been made applicable to the 

1944 Act, we are of the view that the offences 

under the 1944 Act cannot be equated with offences 

under the Indian Penal Code which have been made 

non-cognizable and non-bailable. In fact, in the 

Code itself exceptions have been carved out in 

respect of serious offences directed against the 

security of the country, which though non-

cognizable have been made non-bailable. 

 35

29. However, Sub-section (2) of Section 9A makes 

provision for compounding of all offences under 

Chapter II. Significantly, Chapter II of the 1944 

Act deals with levy and collection of duty and 

offences under the said Act have been specified in 

Section 9, which provides that whoever commits any 

of the offences set out in Section 9, would be 

punishable in the manner indicated under Sub-

section (1) itself. What is even more significant 

is that Section 20 of the 1944 Act, which has been 

extracted hereinabove, provides that the Officer 

in-Charge of a police station to whom any person is 

forwarded under Section 19, shall (emphasis 

supplied) either admit him to bail to appear before 

the Magistrate having jurisdiction, or on his 

failure to provide bail, forward him in custody to 

such Magistrate. The said provision clearly 

indicates that offences under the Central Excise 

Act, as set out in Section 9 of the Act, are 

 36

bailable, since the Officer in-Charge of a police 

station has been mandated to grant bail to the 

person arrested and brought before him in terms of 

Section 19 of the Act. The decisions which have 

been cited by Mr. Parasaran deal mainly with powers 

of arrest under the Customs Act. The only cited 

decision which deals with the provisions of the 

Central Excise Act is the decision of the Division 

Bench of the Punjab & Haryana High Court in the 

case of Sunil Gupta Vs. Union of India. In the 

said case also, the emphasis is on search and 

arrest and the learned Judges in paragraph 22 of 

the judgment specifically indicated that the basic 

issue before the Bench was whether arrest without 

warrant was barred under the provisions of the 1944 

Act and the Courts had no occasion to look into the 

aspect as to whether the offences under the said 

Act were bailable or not.

 37

30. In the circumstances, we are inclined to agree 

with Mr. Rohatgi that in view of the provisions of 

Sections 9 and 9A read with Section 20 of the 1944 

Act, offences under the Central Excise Act, 1944, 

besides being non-cognizable, are also bailable, 

though not on the logic that all non-cognizable 

offences are bailable, but in view of the aforesaid 

provisions of the 1944 Act, which indicate that 

offences under the said Act are bailable in nature. 

31. Consequently, this batch of Writ Petitions in 

regard to the Central Excise Act, 1944, must 

succeed and are, accordingly, allowed in terms of 

the determination hereinabove, and we hold that the 

offences under the Central Excise Act, 1944, are 

bailable.

32. The remaining writ petitions which deal with 

offences under the Customs Act, 1962, namely, Writ 

Petition (Crl.) No.74 of 2010, Choith Nanikram 

 38

Harchandani Vs. Union of India & others, which has 

been heard as the lead case, and Writ Petition 

(Crl.) Nos.36, 37, 51, 76 and 84 of 2011 and Crl. 

M.P. No.10673 of 2011 in W.P. (Crl.) No.76 of 2011, 

all deal with offences under the Customs Act, 

though the issues are exactly the same as those 

canvassed in the cases relating to the provisions 

of the Central Excise Act, 1944. Mr. Mukul Rohatgi, 

learned Senior Advocate, appearing for the Writ 

Petitioners in these matters submitted that the 

provisions of the Customs Act, 1962, are in pari 

materia with the provisions of the Central Excise 

Act, 1944, which are relevant to the facts of these 

cases. The same submissions as were made by Mr. 

Rohtagi in relation to Writ Petitions filed in 

respect of offences under the Central Excise Act, 

1944, were also advanced by him with regard to 

offences under the Customs Act. In addition, 

certain decisions were also referred to and relied 

 39

upon by him in support of the contention that 

offences under the Customs Act were also intended 

to be bailable and they aimed at recovery of unpaid 

and/or avoided custom duties. Mr. Rohatgi submitted 

that, as in the case of the provisions of the 1944 

Act, the ultimate object of the Customs Act is to 

recover revenue which the State was being wrongly 

deprived of. 

33. Mr. Rohatgi submitted that the provisions of 

Section 104(4) of the Customs Act are the same as 

the provisions of Section 9A of the Central Excise 

Act, 1944. Section 104 of the Customs Act empowers 

an officer of Customs to arrest a person in case of 

offences alleged to have been committed and 

punishable under Sections 132, 133, 135, 135A or 

Section 136 of the Act. In addition, Sub-section 

(4) of Section 104, which is similar to Section 

9A(i) of the Central Excise Act, 1944, provides as 

follows :-

 40

 "104. Power to arrest. -

 (1) to (3) ......................................................................

 (4) Notwithstanding anything contained in the 

 Code of Criminal Procedure, 1973, an offence 

 under this Act shall not be cognizable."

34. It was further pointed out that as in the case 

of Section 20 of the Central Excise Act, 1944, 

under Sub-section (3) of Section 104 of the Customs 

Act, an Officer of Customs has been vested with the 

same power and is subject to the same provisions as 

an Officer in-Charge of a police station has under 

the Code of Criminal Procedure, for the purpose of 

releasing the arrested person on bail or otherwise. 

Mr. Rohatgi submitted that as in the case of 

Section 20 of the 1944 Act, the provisions of Sub-

section (3) of Section 104 of the Customs Act, 

1962, indicate that offences under the Customs Act 

would not only be non-cognizable, but would also be 

bailable.

 41

35. Reverting to his submissions in relation to the 

Writ Petitions under the Central Excise Act, 1944, 

Mr. Rohatgi submitted that if it is assumed that 

the bailability in respect of an offence was to be 

determined by the length of punishment in relation 

to Part 2 of the First Schedule to Cr.P.C., it 

would be necessary that the duty leviable under the 

provisions of the Customs Act would first have to 

be adjudicated upon and determined. It was further 

submitted that there has to be a process of 

adjudication to determine the amount of levy before 

any punitive action by way of arrest could be 

taken. Reference was also made to the decision of 

this Court in Commissioner of Customs Vs. Kanhaiya 

Exports (P) Ltd. (Civil Appeal No.81 of 2002), in 

which it had been held that a show cause notice is 

mandatory before initiation of any action under the 

Customs Act. Mr. Rohatgi contended that arrest by 

prosecution could follow only thereafter.

 42

36. Appearing for the Union of India in the matters 

relating to the Customs Act, 1962, the learned 

Additional Solicitor General, Mr. P.P. Malhotra, 

urged that the submissions made by Mr. Rohatgi that 

since offences under the Customs Act are non-

cognizable, they are, therefore, bailable, was 

wholly incorrect, as all non-cognizable offences 

are not bailable. The learned ASG submitted that 

from the First Schedule to the Cr.P.C., it would be 

clear that offences under Sections 194, 195, 274, 

466, 467, 476, 493 and 505 IPC, though non-

cognizable are yet non-bailable. It was submitted 

that Section 505 IPC is punishable with 

imprisonment upto 3 years or with fine or both. 

The said offence being both non-cognizable and non-

bailable is in consonance with the last entry of 

Part 2 of Schedule I to the Code, dealing with 

offences under other laws. The learned ASG 

submitted that the bailability or non-bailability 

 43

of an offence is not dependent upon the offence 

being cognizable or non-cognizable. It was 

submitted that the bailable offences are those 

which are made bailable in terms of Section 2(a) 

Cr.P.C. which are defined as such under the First 

Schedule itself. The learned ASG contended that 

whether an offence was bailable or not, was to be 

determined with reference to the First Schedule to 

the Code of Criminal Procedure, 1973.

37. Referring to Part 2 of Schedule I to the Code, 

the learned ASG submitted that in terms of the 

third entry if the offence was punishable with 

imprisonment which was less than three years or 

with fine only, in that event, the offence would be 

bailable. If, however, the punishment was for 

three years and upwards, it would be non-bailable. 

It was further submitted that the offences under 

Section 135 of the Customs Act, 1962, being 

 44

punishable upto three years and seven years 

depending on the facts, would be non-bailable. 

38. In response to Mr. Rohatgi's submissions that 

since offences under Section 9A of the Excise Act 

were non-cognizable and the Excise Officer, 

therefore, had no power to arrest such a person, 

the learned ASG submitted that such an argument was 

fallacious since it was only for the purposes of 

the Code of Criminal Procedure that the offences 

would be non-cognizable, but it did not mean that 

the concerned officer, who had been authorized to 

investigate into the evasion of excise duty, would 

have no power to investigate or arrest a person 

involved in such offences. In support of his 

submissions, Mr. Malhotra referred to the decision 

of this Court in Union of India Vs. Padam Narain 

Aggarwal [(2008) 13 SCC 305], wherein this Court 

had considered powers of arrest under other 

provisions such as the Customs Act. While deciding 

 45

the matter, this Court had held that the power to 

arrest a person by a Customs Officer is statutory 

in character and cannot be interfered with. 

However, such power of arrest can be exercised only 

in such cases where the Customs Officer has reasons 

to believe that a person has committed an offence 

punishable under Sections 132, 133, 135, 135-A or 

136 of the Customs Act. It was further observed 

that the power of arrest was circumscribed by 

objective considerations and could not be exercised 

on whims, caprice or fancies of the officer. 

39. The learned ASG submitted that in N.H. Dave, 

Inspector of Customs Vs. Mohd. Akhtar Hussain 

Ibrahim Iqbal Kadar Amad Wagher (Bhatt) & Ors. 

[1984 (15) ELT 353 (Guj.)], the Division Bench of 

the Gujarat High Court, inter alia, observed that 

since offences under Section 135 of the Customs 

Act, 1962, are punishable with imprisonment 

exceeding three years, the offences would be non-

 46

bailable. The learned ASG submitted that the 

aforesaid view had been confirmed by this Court in 

Deepak Mahajan's case (supra), wherein it was held 

that although the powers of the Customs Officer and 

Enforcement Officer are not identical to those of 

Police Officers in relation to investigation under 

Chapter XII of the Code, yet Officers under the 

Foreign Exchange Regulation Act and the Customs Act 

are vested with powers which are similar to the 

powers of a police officer. The learned ASG 

submitted further that such officers, who have the 

power to arrest, do not derive their power from the 

Code, but under the special statutes, such as the 

Central Excise Act, 1944, and the Customs Act, 

1962. 

40. The learned ASG submitted further that the 

powers of the Customs Officer to release an 

arrested person on bail is limited and when an 

accused is to be produced before the Court, it is 

 47

the Court which would grant bail and not the 

Customs Officer. He only ensures that the person is 

produced before the Magistrate. According to the 

learned ASG, what is of paramount importance is the 

nature of the offence which would determine whether 

a person is to be released by the Court on bail. 

The learned ASG submitted that while in a 

cognizable case a police officer could arrest 

without warrant and in non-cognizable cases he 

could not, the offences under the Excise Act, 

Customs Act or Foreign Exchange Regulation Act, 

1973, are offences under special Acts which deal in 

the evasion of excise, custom and foreign exchange. 

According to the learned ASG, in such matters, 

police officers have been restrained from 

investigating into the offences and arresting 

without warrant, but the concerned Customs, Excise, 

Foreign Exchange, Food Authorities, were not police 

officers within the meaning of the Code, and, they 

 48

could, accordingly arrest such persons for the 

purposes of the investigation, their interrogation 

and for finding out the manner and extent of 

evasion of the excise duty, customs duty and 

foreign exchange etc. The learned ASG submitted 

that cognizability of an offence did not mean that 

the person could not be arrested by the officials 

of the Department for the purpose of the 

investigation and interrogation. It was further 

submitted that Section 104(4) of the Customs Act, 

1962, indicates that the offences thereunder would 

be non-cognizable within the meaning of the Code 

and would prevent police officers under the Code 

from exercising powers of arrest, but such 

restriction do not apply to the special officers 

under various special statutes. 

41. Mr. Malhotra submitted that the offences which 

were non-cognizable were not always bailable and 

special officers under special Statutes would 

 49

continue to have the power to arrest offenders, 

even if under the Code police officers were 

prevented from doing so. 

42. The submissions advanced by Mr. Rohatgi and the 

learned ASG, Mr. Malhotra, with regard to the 

question of bailability of offences under the 

Customs Act, 1962, are identical to those involving 

the provisions of the Central Excise Act, 1944. 

The provisions of the two above-mentioned 

enactments on the issue whether offences under both 

the said Acts are bailable, are not only similar, 

but the provisions of the two enactments are also 

in pari materia in respect thereof. 

43. The provisions of Section 104(3) of the Customs 

Act, 1962, and Section 13 of the Central Excise 

Act, 1944, vest Customs Officers and Excise 

Officers with the same powers as that of a Police 

Officer in charge of a Police Station, which 

 50

include the power to release on bail upon arrest in 

respect of offences committed under the two 

enactments which are uniformly non-cognizable. 

Both Section 9A of the 1944 Act and Section 104(4) 

of the Customs Act, 1962, provide that 

notwithstanding anything in the Code of Criminal 

Procedure, offences under both the Acts would be 

non-cognizable. The arguments advanced on behalf 

of respective parties in Om Prakash & Anr. Vs. 

Union of India & Anr. (Writ Petition (Crl) No.66 of 

2011) and other similar cases under the Central 

Excise Act, 1944, are equally applicable in the 

case of Choith Nanikram Harchandani Vs. Union of 

India & Ors. (Writ Petition (Crl) No.74 of 2010 and 

the other connected Writ Petitions in respect of 

the Customs Act, 1962. 

44. Accordingly, on the same reasoning, the 

offences under the Customs Act, 1962 must also be 

held to be bailable and the Writ Petitions must, 

 51

therefore, succeed. The same are, accordingly, 

allowed. Crl. M.P. No.10673 of 2011 in WP (Crl.) 

No.76 of 2011 is also disposed of accordingly. 

Consequently, as in the case of offences under the 

Central Excise Act, 1944, it is held that offences 

under Section 135 of the Customs Act, 1962, are 

bailable and if the person arrested offers bail, he 

shall be released on bail in accordance with the 

provisions of sub-Section (3) of Section 104 of the 

Customs Act, 1962, if not wanted in connection with 

any other offence.

 ............................................................J.

 (ALTAMAS KABIR)

 ............................................................J.

 (CYRIAC JOSEPH)

 ............................................................J.

 (SURINDER SINGH NIJJAR)

New Delhi,Dated: 30.9.2011

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