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4. He submitted that Section 451 of the Cr.P.C authorizes a criminal court to dispose of the property which is subject to decay, he would contend that a criminal court does not have any jurisdiction under the Customs Act. He states that the Customs Act is self contained and only the authorities under the Customs Act have the jurisdiction/power to dispose of the goods confiscated under the Customs Act. He submits that order directing disposal could not have been passed either under Section 451 CrPC or Section 122 Customs Act.

5. He further argued that, without prejudice to his other contentions, under Section 451 Cr.P.C the criminal court can only make such order during a trial or pending the conclusion of the inquiry under Cr.P.C. It is submitted that a trial going on under the Cr.P.C prior to the disposal of the goods as per the mandate of Section 451 Cr.P.C. Reliance was placed upon Hardeep Singh v. State of Punjab, AIR 2014 SC 1400, which defines the term 'inquiry' and draws its distinction from 'investigation' done by any investigating agency.

7. In support of his submissions the Ld. Counsel for the Petitioner has relied upon the judgment of this Court in Directorate of Revenue Intelligence V. M/s PRK Diamonds Pvt. Ltd, (Crl. MC No. 4316/2016) wherein this Court has held that the goods confiscated under the Customs Act cannot be disposed of under Code of Criminal Procedure.

8. It is stated by the learned counsel for the petitioner that a notice has to be issued under Section 451 Cr.P.C before confiscation of the goods within six months. He would state that the adjudicating authority has imposed a penalty of Rs.29,50,000/- under Section 112(a) (ii) of the Customs Act and Rs.10,00,000/- under Section 114A of the Customs Act. He would state that there is a direction of the authority that in any way it is open to the petitioner to pay the fine and get the goods redeemed and therefore, goods ought not to have been sold because once the goods sold can never be recovered back. He would further state that the petitioner cannot be saddled twice i.e. (a) impose penalty and (b) sell the goods. He would state that the action can be taken by the Customs Department only under Section 135 of the Customs Act and goods cannot be sold by invoking provision of Section 451 Cr.P.C which postulates an inquiry or trial under the Cr.P.C and which cannot be invoked for dealing with the goods which have been confiscated under Customs Act.

11. The Ld. SPP argued that the Petitioner had in statement had stated to the Respondent that he would require some time to think about payment of 200% BCD Fine which is attracted to the goods being imported from Pakistan as per CBIC Notification No. 05/2019 dated 16.12.2019 and no response to that effect was received from the Petitioner about the payment of 200% penalty/fine on the goods. Further, Mr. Aggrawala submitted that the disposal of the goods was not under the provisions of the Cr.P.C, he submits it was done in accordance with the Disposal Manual of 2019 that is made applicable the Customs Act. He advanced that the Disposal Manual itself mandates the procedure of disposal or discarding of goods is to be done as per the process laid down under Section 451 CrPC. He submitted that the goods in question were dry dates which have a very short shelf life and are perishable in nature which require it to be consumed within a period of time. He submits that dry dates fall under Category 1 of the Disposal Manual, which are goods which need to be disposed of immediately after being seized. He emphatically argued that disposal of the confiscated goods was not the first option but the last choice after giving an opportunity to the Petitioner to deposit the penalty and after giving chances to explain cogently the circumstances to prove the authenticity of the bills/certificates of origin.