1977 (10) TMI 42 - SC - Customs

Whether the trial court had power to order confiscation of the goods found in appellant s possession while convicting him under Section 135 of the Customs Act? Held that - It is true that the foreign currency seized from the appellant s possession was property in respect of which an offence was committed, but this fact alone did not call for an order under Section 452(1) in the circumstances of the case, and the order passed, besides being unwarranted, is likely to create complications if in respect of the foreign currency a proceeding under the Customs Act is pending or the Customs authorities have made any order with which the Magistrate s order is inconsistent. We therefore allow the appeal and set aside the order of confiscation passed by the Magistrate and affirmed by the High Court.

Summary

Issues:
1. Whether the trial court had the power to order confiscation of goods under Section 135 of the Customs Act.
2. Applicability of Section 452(1) of the Cr. P.C. for the disposal of property in this case.

Analysis:

Issue 1:
The appellant, a foreigner, was found in possession of smuggled foreign currency, leading to his conviction under Section 135 of the Customs Act. The appeal questioned the trial court's authority to order confiscation of the seized currency. The Customs Act, particularly Sections 111 to 127, outlines the process for confiscation of goods and penalties. The appellant argued that the specific provisions in the Customs Act override the general law of property disposal under Section 452(1) of the Cr. P.C. The Court noted that the Magistrate's order of confiscation was unwarranted as the seized currency was not under the court's control during the trial. The order was deemed unnecessary and potentially conflicting with any actions taken by the Customs authorities. Consequently, the Court allowed the appeal and set aside the order of confiscation.

Issue 2:
Regarding the application of Section 452(1) of the Cr. P.C., the Court emphasized that an order for property disposal is required when the court retains control over the property post-trial. In this case, since the foreign currency was not presented before the Magistrate and was not in the court's custody during the confiscation order, the need for property disposal did not arise. The Court highlighted that the Magistrate's lack of awareness about the status of the goods further invalidated the confiscation order. The judgment clarified that the absence of a disposal order was appropriate given the circumstances. The Court did not delve into the return of the seized currency to the appellant, leaving it to the Customs authorities to handle in accordance with the law and expediently due to the case's age.

This judgment primarily addresses the procedural aspects of property confiscation under the Customs Act and the Cr. P.C., emphasizing the necessity for court control over the property in question for a valid confiscation order.