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2021 (8) TMI 932 - DSC - CustomsSmuggling - foreign currency - Indian currency - reasons to believe - Section 110 (1B) of Customs Act - HELD THAT - The decision interpreting the word Magistrate to be Judicial/Metropolitan Magistrate seemed flawed and it was categorically held that it is an Executive function. Thereby, giving strength to the decision of this Court about the application not being maintainable before this Court. This Court also feels the need to discuss another decision of the Hon ble High Court of Delhi pronounced recently in AIR CUSTOMS VERSUS MOSAFIER ALIZAHI ORS. 2021 (2) TMI 310 - DELHI HIGH COURT wherein the Hon ble High Court held that the proceedings under Section 52A of NDPS Act were to be carried out by the Metropolitan Magistrate. The order emphasized on 52A (4) of the NDPS Act however, there is no provision akin to Section 52A (4) in the Customs Act. The application is not maintainable before this Court and therefore, the same is dismissed liberty to invoke the same before the Competent Authority.
Issues Involved:
1. Maintainability of the application under Section 110 (1B) of the Customs Act, 1962 before a Judicial/Metropolitan Magistrate. 2. Interpretation of the term "Magistrate" under Section 110 (1B) of the Customs Act, 1962. Detailed Analysis: Maintainability of the Application: The primary issue addressed in the judgment is the maintainability of the application filed under Section 110 (1B) of the Customs Act, 1962, before a Judicial/Metropolitan Magistrate. The court considered various precedents and legal provisions to determine whether such an application could be entertained by a Judicial Magistrate. The court noted that the application was filed to certify the correctness of an inventory of seized goods, which included foreign currency equivalent to INR 1,42,50,257/- and Indian currency equivalent to ? 5,32,500/-. The respondent had neither admitted nor denied the recovery, seizure, and other incriminating facts. Interpretation of the Term "Magistrate": The court delved into the interpretation of the term "Magistrate" as used in Section 110 (1B) of the Customs Act. The provision mandates that a proper officer, after seizing goods, must prepare an inventory and make an application to a Magistrate for certifying the correctness of the inventory, taking photographs of the goods, or drawing representative samples. The court emphasized that Section 110 of the Customs Act does not contain a provision similar to Section 52 A (4) of the NDPS Act, which explicitly states that the inventory, photographs, and samples certified by the Magistrate shall be treated as primary evidence. Judicial Precedents: The court referred to several judicial pronouncements to interpret the term "Magistrate": 1. Department of Customs v. Parvinder Kaur: The Hon'ble High Court of Delhi did not specifically address whether the term "Magistrate" referred to a Judicial or Executive Magistrate. 2. Directorate of Revenue Intelligence v. State: The Hon'ble High Court held that the duties under Section 110 (1B) are executive or administrative in nature and should be performed by an Executive Magistrate, not a Judicial Magistrate. 3. Department of Customs v. Siddhant Enterprises: The Hon'ble High Court reiterated that the term "Magistrate" should be interpreted as an Executive Magistrate. 4. Department of Customs v. Ram Mohan Gulati: The Hon'ble High Court confirmed that the certification of the inventory and related tasks are administrative or executive functions, thus falling under the purview of an Executive Magistrate. 5. Air Customs v. Mosafier Alizahi: The court distinguished this case by noting that it pertained to the NDPS Act, which has a specific provision (Section 52A (4)) that is not present in the Customs Act. Conclusion: Based on the detailed analysis of legal provisions and judicial precedents, the court concluded that the application under Section 110 (1B) of the Customs Act is not maintainable before a Judicial/Metropolitan Magistrate. The court held that the functions described in the provision are executive or administrative in nature and should be performed by an Executive Magistrate. Consequently, the application was dismissed with liberty to invoke the same before the competent authority. The case papers were directed to be sent to the concerned court.
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