Can DRI, ED & Customs sleuths act as cops?

In a recent decision of the Hon’ble High Court of Madras in H.C.P. No. 1021 of 2023, the following issues were framed when the difference of opinion between the two Judges of the Court gave a split decision in an appeal filed by Ms. Megala v Dy. Director, Directorate of Enforcement on July 4, 2023.

For reasons which they had substantiated in their respective Judgments, both the learned Judges differed on crucial aspects. Thereupon the matter was placed before the Hon’ble Chief Justice who referred the matter to Justice CV Karthikeyan to decide the issue.

The following issues were framed:(i)Whether the Enforcement Directorate has the power to seek custody of a person arrested;(ii)Whether the Habeas Corpus itself is maintainable after judicial order of remand has been passed by a Court?and, (iii)Whether as a consequential issue, if Issue No.1 is answered in favour of the ED whether that period of hospitalisation could be excluded while taking into consideration their request for police custody?

In the decision dated 14.7.2023, a number of important decisions were examined in great detail. In particular, the following decisions were referred to before deciding the issues framed:Vijay MadanlalChoudhary vs. Union of India, [2022 SCC Online 929]

After a detailed discussion, the Apex Court held that the officials of the Enforcement Directorate (ED) are not police officials. They had stated that a statement referred under S. 50 of the Act is admissible. This statement is recorded prior to arrest but when such person is under custody of the officials of the ED. It was further held that even though it had been stated that the respondents are not police officials, the procedure under S. 167 Cr.P.C., would apply, and the respondents have a right to seek custody on remand. It had been conclusively held that they are not police officials, but nowhere had it been stated that they have no right to take custody, if investigation required it.

The Court also referred to the decision in the case of P. Chidambaram v. CBI, 2019 SCC Online Del 9703] in which the High Court of Delhi observed that

The investigation of a cognizable offence and the various stages thereon including the interrogation of the accused is exclusively reserved for the investigating agency whose powers are unfettered so long as the investigating officer exercises his investigating powers well within the provisions of the law and the legal bounds. However, this power of invoking inherent jurisdiction to issue direction and interfering with the investigation is exercised only in rare cases where there is abuse of process or non-compliance of the provisions of the CrPC.

After considering various decisions, the issues were answered as mentioned below:

(i)Whether Enforcement Directorate has the power to seek custody of a person arrested? The answer given by this Court is 'Yes' in alignment with the views / opinion expressed by the Hon'ble Justice D BharathaChakravarthy;

(ii)Whether the Habeas Corpus Petition itself is maintainable after a judicial order of remand is passed by a Court of competent jurisdiction? The Petition would be maintainable in exceptional circumstances, but this case does not attract any exceptional circumstance and consequently since an order of remand had been passed by a Court of competent jurisdiction, the relief sought in the petition cannot be granted.

(iii)The consequential issue is as to whether ED would be entitled to seek exclusion of time for the period of hospitalization beyond the first 15 days from the date of initial remand? It was held that exclusion of time as sought is permissible. The concept whether the period of hospitalization can be excluded or not alone can be answered by this Court and I would answer that the period of hospitalization has to be excluded.

A similar issue came up before the Hon’ble Supreme Court (2023-TIOM-101-SC-CUS) in which the following issues were framed:

1. Whether a DRI Officer is a “proper officer” for the purposes of S. 28 of the Customs Act, 1962?

2. Whether the summons issued by the DRI Officer to the respondent under S.108 could be said to be without jurisdiction?

3. Whether the Customs/DRI Officers are police officers and, therefore, are required to register FIR in respect of an offence under S. 133 to 135. ?

4. Whether the provisions of S. 154 to 157, 173(2) of the Cr.PC would apply in respect of the proceeding under the Customs Act, in view of S. (2) of the Code?

5. In respect of offenses under S. 133 to 135 whether the registration of FIR is mandatory before a person concerned is arrested?”

In the following decisions, similar matters came up before the Apex Court: Tofan Singh v State of Tamil Nadu - 2018 (363) E.L.T. 3 (S.C); DRI v Deepak Mahajan1994 (70) E.L.T. 12 (S.C); Raju Premji v Commissioner, Shillong Unit - 2013 (296) E.L.T. 435 (S.C.); and Illias vs Collector Of Customs, Madras -1970 AIR 1065, – Division Bench of 5 Judges.

In the Illias case, the Apex Court held that, "The test for determining whether such a person is a 'police officer' for the purpose of S. 25 of the Evidence Act would, in our judgment, be whether the powers of a police officer which are conferred on him or which are exercisable by him because he is deemed to be an officer in charge of a police station establish a direct or substantial relationship with the prohibition enacted by S. 25. In other words, the test would be whether the powers are such as would tend to facilitate the obtaining by him of a confession from a suspect. If they do, then it is unnecessary to consider the dominant purpose for which he is appointed or the question as to what other powers he enjoys."

The case of Raja Ram Jaiswal came up for discussion in the case of BadkuJoti Savant v. State of Mysore. The contention raised was that the C.E. Officer was a police officer within the meaning of S. 25. The narrow view was that these words in S. 25 meant a police officer properly so called and did not include officers of other departments of Government who might be charged with the duty to investigate, under special Acts, special crimes like the excise or customs offences etc. After examining a few earlier decisions and the various provisions of the C.E. Act and in particular S 21, it was observed that a police officer for the purpose of Cl. (b) of S. 190 of Cr.PC could only be one properly so called.

S. 21 provides that for purpose of enquiry, a C.E. Officer shall have the powers of an officer-in-charge of a police station when investigating a cognizable case.

In BadkuJoti Savant case, it was held that even if an officer under the special Act has been invested with most of the powers which an officer-in-charge of a police station exercises when investigating a cognizable offence, he does not thereby become a police officer within the meaning of S. 25 unless he is empowered to file a charge sheet under S. 173 of Cr. PC.

Even though under the new Act, a customs officer has been invested with powers which were not there under the old Act, he cannot be regarded as a police officer within the meaning of S. 25. In two decisions of Supreme Court i.e. Romesh Chandra Mehta v. State of West Bengal and DadyAdarjiFatakiav.K.K. Ganguly, the view expressed in Barkat Ram's case with reference to the old Act has been reaffirmed that under the new Act also the position remains the same.

The Apex Court took the view that a Customs Officer is not a police officer within the meaning of S. 25 and the statements made before him by a person who is arrested are not hit by S. 25.

The question whether officers of DRI, ED and the NCB are police officers or otherwise has come up before and would probably come up once again till it is finally decided by a Larger Bench of 7 Judges of the Supreme Court.

(Writer is former DG, DRI and Member, CBIC)