Calcutta High Court
Haradhan Das And Anr. vs Collector Of Customs on 2 December, 1986
Equivalent citations: 1987(11)ECC368, 1988(17)ECR709(CALCUTTA), 1987(30)ELT83(CAL)
JUDGMENT Manoranjan Mallick, J.
1. These two criminal revisions arise out of the orders passed by the learned Chief Metropolitan Magistrate, Calcutta on 12-3-1986, 13-8-1986 and 16-8-1986.
2. The facts are briefly as follows :-
The customs department seized some contraband goods along with a truck. The petitioners of Criminal Revision Case No. 1226 of 1986 Hara-dhan Das and Smt. Monika Dey applied for return of the truck on bond. The learned Chief Metropolitan Magistrate, Calcutta overruling the objection of the customs department ordered the return of the seized truck on the petitioner's furnishing a bond of Rs. 1,00,000/-. The customs department objected to the return of the truck on the ground that the learned Magistrate did not have jurisdiction to pass the order of return of the truck seized by the customs department as no complaint has yet been filed by the customs and no cognizance of the case had yet been taken by the learned Magistrate.
Overruling the said objection of the customs, the order for return of the seized truck in question was passed by the learned Magistrate on the petitioners furnishing bond of Rs. 1,00,000/-. Thereafter on the prayer of the customs department, the learned Chief Metropolitan Magistrate observing that as the prosecution raised the question of jurisdiction which was a debatable one, he stayed the operation of the said order so that the customs department could move the superior Court for obtaining necessary orders. Thereafter, the petitioners Haradhan Das and Smt. Monika Dey moved this Court in revision against the subsequent orders of stay of return of the truck being the Criminal Revision Case No. 1226 of 1986. The Assistant Collector of Customs (Preventive), Barasat Customs Division, Calcutta moved the Criminal Revision Case No. 1261 of 1986 against the order dated 12-8-1986 by which the learned Chief Metropolitan Magistrate directed the return of the seized truck WGA 3993 to the petitioner Smt. Monika Dey after verifying that she was the registered owner of the truck and on condition of producing the same on call and on her furnishing the bond as aforesaid.
3. Both these revision petitions are taken up for judgment analogously on consent of both the parties.
4. Mr. Balai Chandra Roy, learned Advocate appearing for the petitioners Haradhan Das and Smt. Monika Dey, relied on unreported decisions of this Court and has urged that it would be apparent from the said decisions that the Magistrate has the jurisdiction to pass the order for release of the truck seized by the customs department and pending filing of a formal complaint by the Customs Act, namely, Section 104(3) of the Act in which it has been provided that "Where an officer of Customs has arrested any person under Sub-section (1) he shall, for the purpose of releasing such person on bail or otherwise, have the same powers and be subject to the same provisions as the Officer-in-charge of a police station has and is subject to under the Code of Criminal Procedure, 1898."
5. I have carefully considered the two unreported decisions referred to by Mr. Roy, learned Advocate for the petitioners. The Division Bench judgment of Criminal Revision No. 547 of 1974 is one of those decisions and the other is Single Bench "judgment of Criminal Revision No. 1648 of 1980. But in none of these two decisions, there is a clear finding that the Magistrate had the necessary jurisdiction before a complaint under Section 135 of the Customs Act, to deal with and dispose of the property seized by any Customs Officer under the provisions of the Customs Act. On the contrary, I have before me the decision of the Single Bench of this Court reported in 1987 Cal. W.N. 287 in which the learned single Judge has clearly taken the view that the cumulative effect of the Sections 124, 125 and 110(2) of the Customs Act is that a Magistrate has no jurisdiction to make orders in respect of the goods seized by the Customs Officer and liable to confiscation under the provisions of the said Act, at least before the launching of the criminal proceedings.
6. On a reading of Sub-section (3) of Section 104 of the Customs Act, I am of the view that the Customs Officer is declared under the, said Sub-section (3) to have the jurisdiction to exercising the same powers as the officer-in-charge of a Police Station for the purpose of releasing a person arrested by him on bail or otherwise. It is also to be remembered searches of premises and seizures of Articles being empowered under Section 105 of the Customs Act, he has to follow the provisions of Section 165 of the Code of Criminal Procedure subject to the modification that he has to report about the seizure not to the Magistrate concerned, but to the Collector of Customs. Therefore, when a Customs Officer being empowered under Section 105 of the Customs Act searches a premises and seizes some Articles, he does not have the obligation to report the seizure to the Magistrate, but to the Collector of Customs. Therefore, for the purpose of search and seizure by Customs Officers under the Customs Act, the Customs Officer does not function as a Police Officer. That the Customs Officer is not a Police Officer has been clearly delcared by the Supreme Court in several decisions. Reference may be had to the decisions of the Supreme Court reported in State of Punjab v. Barkat Ram, and Illias v. Collector of Customs, . Therefore, the jurisdiction of the Magistrate cannot be invoked either under Section 451 or under Section 457 of the Criminal Procedure Code for dealing with the Articles seized by the Customs Officer in connection with a customs raid conducted by him under the provisions of the Customs Act before any complaint under Section 135 of the Customs Act is filed. So I am of the view that the learned Chief Metropolitan Magistrate was not justified in taking up or assuming the jurisdiction as such and passing the order of the return of the seized truck.
7. Mr. Roy, learned Advocate for the petitioners in Criminal Revision No. 1226 of 1986, has submitted before me that even if the Magistrate does not have the power of the return, this Court may direct return of the truck or seized goods by invoking Section 482 of the Criminal Procedure Code or under Article 227 of the Constitution. That this Court has the power to return a vehicle by invoking Section 482 of the Code or under Article 227 of the Constitution for ends of justice cannot be disputed. The allegation of the petitioners is that the petitioner No. 2 Smt. Monika Dey is the registered owner of the truck and that she had/has no knowledge regarding the involvement of the truck in connection with the alleged interception of the truck and seizure of certain goods which are alleged to have been illegally and illicitly imported. The petitioner as the registered owner has urged that the truck is her only source of livelihood and due to the seizure of the truck she is deprived of her livelihood and that the said truck has been seized on 15-5-1986 and has been kept in the open place, exposed to sun and rain.
8. I am aware that the customs department is entitled to start a confiscation proceeding of the truck under Section 115 of the Customs Act, but the registered owner of the truck concerned has also the right under the proviso to Sub-section (2) of Section 115 of the Act to claim that in lieu of confiscation a fine not exceeding the market price of the goods sought to be smuggled or the smuggled goods, as the case may be, may be imposed upon the registered owner. In view of the above, and in view of the statements of the registered owner that the truck is her only source of livelihood, I direct that the seized truck WGA 3993 be released to the petitioner No. 2 on her furnishing a bond of Rs. 1,00,000/-(one lakh) to the satisfaction of the learned Chief Metropolitan Magistrate, Calcutta. If not already furnished, and also on furnishing a Bank Guarantee of Rs. 50,000/- (rupees fifty thousand).
9. The revision petitions be disposed of accordingly.
Let the copy of this order be sent to the learned Chief Metrolitan Magistrate at once by Special Messenger at the cost of the petitioner of Revision Case No. 1226 of 1986.