Bombay High Court
Asstt. Collector Of Customs vs Smt. Maria Rege And Ors. on 9 August, 1990
Equivalent citations: 1991(1)BOMCR626, 1991CRILJ229
ORDER
1. Feeling aggrieved by the order dated 7th April, 1990 passed by the Judicial Magistrate F.C., Margao, Goa in Criminal Misc. Application No. 30/C/90 the Collector of Customs has preferred this Criminal Writ Petition seeking the same to be quashed and set aside on the following facts.
2. On a reasonable belief that respondent No. 1 along with others is involved in smuggling activities and further on the reasonable belief that respondent No. 1 had her residence at Merces Wadi, Taluka Tiswadi, is in possession of certain currency notes directly related to the offence of smuggling goods, carried out a raid on the house of respondent No. 1 on 18th February, 1990 and seized currency notes worth Rs. 22,000/- from the said house.
3. On 31st March, 1990 respondent No. 1 Smt. Rege moved an application before the Chief Judicial Magistrate, Margao seeking release of the currency notes seized from her residence by the Assistant Collector. On 7-4-1990 the said application came up for hearing after notice to the Collector of Customs and was taken up by the Judicial Magistrate F.G., Margao who was on that day acting as Chief Judicial Magistrate. Upon hearing both the parties, the learned trial Judge passed the impugned order directing the release of currency notes of Rs. 22,000/- in favour of respondent No. 1. By the time the Assistant. Collector could move the higher Courts, the respondent No. 1 also filed an application for non-compliance and contempt of the trial Court's order. That application was filed on 11th April, 1990 on which day the trial Judge directed the Assistant Collector to comply with his earlier order of 7-4-1990.
4. Both these orders are challenged by the Assistant Collector in this Writ Petition.
5. Shri Khandeparkar, the learned counsel appearing for the petitioner, contended that the learned Magistrate did not have jurisdiction to deal with an application under section 457 of the Cr.P.C. preferred by the respondent No. 1. According to him the Assistant Collector of Customs is not a Police Officer and as such the Criminal Courts do not have any jurisdiction to pass orders regarding disposal of property seized by a Customs Officer. In the present case according to him the Assistant Collector of Customs had not taken any proceedings either and the matter was pending inquiry with the Customs. At that stage according to Shri Khandeparkar, the learned Magistrate does not get any jurisdiction under section 457 since the Customs Officer is not a Police Officer. He therefore prayed that the impugned order be quashed and set aside as also the further direction dated 11-4-1990 to comply with the order.
6. Shri Diniz, the learned counsel appearing for respondent No. 1 urged that since the property has been seized by an officer of the Customs Department and the respondent No. 1 was apprehending criminal prosecution in respect thereof, the respondent No. 1 was justified in approaching the Criminal Court for the necessary relief of release of property which according to the respondent was wrongly seized. He therefore supported the impugned order.
7. Shri Bhobe, the learned Public Prosecutor however took up the same stand as that of the counsel for the petitioner.
8. Chapter XXXIV of the Code of Criminal Procedure deals with disposal of property. Section 451 deals with orders regarding custody and disposal of property pending trials in certain cases. Section 452 of the Code deals with orders for disposal of property at conclusion of trials, While Section 453 deals with payment to innocent purchaser of money found on the accused. Section 454 deals regarding right of appeal against orders passed under sections 452 or 453. Section 455 deals with destruction of libellous and other matters, while Section 456 deals with power to restore possession of immovable property. All these provisions are not applicable to the present case which deals with "disposal of property seized by the Police" which is covered by Section 457 of the Code of Criminal Procedure.
9. A perusal of Section 457 clearly indicates that the Magistrate gets jurisdiction to deal with property "seized by a Police Officer" during inquiry or trial. It is therefore clear that unless the property in question has been seized by a Police Officer during inquiry or trial the Criminal Court will not get jurisdiction under section 457 to deal with such seizures.
10. In the instant case the seizure has been effected by the Assistant Collector of Customs. The word "Police" has not been defined under the Criminal Procedure Code. But the words "Officer in charge of a Police Station" has been defined in Section 2(o). It states that the Officer in charge of a police station includes, when the officer in charge of the police station is absent from the station-house or unable from illness or other cause to perform his duties, the police officer present at the station-house who is next in rank to such officer and is above the rank of constable or, when the State Government so directs, any other police officer so present.
11. Even under the Bombay Police Act, Police Officer is defined to be one belonging to the police cadre above the rank of a constable. The Customs Act does not define the Customs Officer or Assistant Collector as a Police Officer. It is in these circumstances have no hesitation to hold that the Customs Officers are not Polite Officers. Consequently the Customs Officer is not a Police Officer and the seizure of property effected by him and the disposal there of cannot be taken cognizance of by a Criminal Court under section 457 of the Code of Criminal Procedure. I am supported in this view by the decision of the Division Bench of the Kerala High Court in P. O. Thomas v. Union of India, reported in 1990 Cri. LJ 1028. The said case also relates to a seizure effected by Customs Officer and action taken by the Magistrate thereupon. The said decision is based on reported decisions of the Supreme Court in State of Punjab v. Barkat Ram, State of West Bengal v. S. N. Basak, and Badaku Joti Svant v. State of Mysore, . Similar is the view expressed by a Division Bench of the Madhya Pradesh High Court in Babulal Lodhi v. State of Madhya Pradesh reported in 1987 Cri LJ 1709. In the said case the seizure was effected by a Forest Range Officer and the order passed under section 457, Cr.P.C. came to be challenged. The High Court held that the Forest Officer is not a Police Officer within the meaning of the Criminal Procedure Code and the seizure cannot be taken cognizance of by a Criminal Court under section 457 of the Code.
12. In view of the above reasoning it is clear that the Magistrate had no jurisdiction whatsoever since the seizure in question was effected by a 'Customs Officer' and not a 'Police Officer'. The order being impugned is liable to be quashed and set aside.
13. Shri Khandeparkar had also taken up the ground of jurisdiction of Margao Criminal Court in respect of the seizure held at Merces Waddi, Taluka Tiswadi. However, in view of the above finding he does not press the other ground.
14. In the result the Criminal Writ Petition is allowed. The impugned orders dated 7th April, 1990 and 11th April, 1990 are quashed and set aside.
15. Petition allowed.