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