Goodwill Electronics Vs. Union of India (Uoi)

.....desai & d.b. bhosale, jj] arrest of accused - held, a police officer or a person empowered to arrest may arrest a person without intervention of the court subject to the limitations specified under the provisions of the code. the provisions of section 41 of the code provides for arrest by a police officer without an order from a magistrate and without a warrant. a distinct and different power under section 44 of the code empowers the magistrate to arrest or order any person to arrest the offender. under section 44 of the code, that power is vested in the court of the magistrate when an offence is committed in his presence. if the legislature has taken care of providing such specific power under section 44 of the code, then there could be no reason for such a power not to be specified under the provisions of chapter xii of the code. in terms of section 41, a police officer may arrest a person without a warrant or order from the magistrate for any or all of the conditions specified in that provision. language of this provision clearly suggested that the police officer can arrest a person without an order from the magistrate. thus, there appears to be no reason why on the strength of section 156(3) of the code, any restriction should be read into the power specifically granted by the legislature to the police officer. of course, freedom of investigation is the essence of these provisions but in order to suppress the mischief it is sufficiently indicated under different provisions of the code that the arresting officer should exercise his power or discretion judiciously and should be free of motive. some kind of inbuilt safeguard is available to the accused in the cases where the magistrate directs investigation under section 156 (3) of the code by taking recourse to the provisions of section 438 of the code by approaching the court of session or the high court for such relief. thus, during the course of investigation of a criminal case, an accused is not ..........counsel appearing for the mumbai port trust is right in pointing out that under section 58 of the mumbai port trust act, 1963, the port trust is entitled to recover the demurrage charges before release of the goods. the question is, who is responsible for the same, prima facie, in view of the judgment of apex court reported in : 2001(129)elt561(sc) , between shipping corporation of india ltd. v. c.l. jain woolen mills and ors., the supreme court observed as under :'the conclusion of the high court to the effect that the detention of the goods by the customs authorities was illegal and such illegal detention prevented the importer from releasing the goods, the customs authorities would be bound to bear the demurrage charges in the absence of any provision in the customs act, absolving the customs authorities from that liability. section 45(2)(b) of the customs act cannot be construed to have clothed the customs authorities with the necessary powers, so as to absolve them of the liability of paying the demurrage charges'.the customs authority is responsible for this as the detention is said to be illegal as the adjudication notice was decided on 27-2-2001 in favour of the petitioners and it is not challenged by the department. the respondents ought to have released the goods immediately on 4-4-2001 when the petitioners applied.3. in view of the above, we pass the following order :-