9911796707
TMI Blog1969 (8) TMI 92X X X X Extracts X X X X X X X X Extracts X X X X ..... which was seized originally by the Mobile Anti Smuggling Staff. A.C.B. Bulsar, under the panchnama, dated 8th February, 1969, with other goods alleged to be smuggled good, filed an application on 28th February, 1969, under Section 523 of the Criminal P.C. it was stated therein that the aforesaid truck was stopped near Bhilad Checkpost while it was going towards Bombay side, for checking, it was stated therein that the applicant was residing at Bombay and the accused was Jitsingh. That Jitsingh was driving that truck on checking, opium was found from the person of that driver and in the truck were found the goods in relation to which the offence under the Customs Act was suspected to be committed. That truck and goods were seized under the panchnama and that truck is in the custody of the Custom Superintendent. This truck is the only means of his livelihood. The driver was not his own driver, but was a driver of one Harischandra Transport Company. He knew nothing about this offence. He was quite innocent. He, therefore, prayed that the Custom Superintendent be directed to hand over the truck to him. He is prepared to abide by the terms that be imposed on him by the Court. 3 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... red to as the Code) a police officer had powers to seize any property which may be found under the circumstances which create suspicion of the commission of any offence. 8. The word offence has been defined in Section 4(0) of the Code under :- Offence means any act or omission made punishable by any law for the time being in force; it also includes any act in respect of which a complaint may be made under Section 20 of the Cattle Trespass Act, 1871. In view of this definition of the word offence given in the Code. It was submitted by Mr. Mehta that even if a police seized this vehicle and the goods alleged to be smuggled, which were being transported in this vehicle. On suspicion the offence committed was an offence punishable under the Act. In view of the provisions of Section 550 of the Code. He had legal power to seize them. Section 550 of the Code reads. Any police -officer may seize any property which may be alleged or suspected to have been stolen, or which may be found under circumstances which creates suspicion of the commission of any offence. Such police -officer, if subordinate to the officer in charge of a police-station, shal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e making it obligatory to report the seizure of any property to the Magistrate and, secondly, it directs that it shall be reported forthwith. The idea behind the use the word forthwith appears to be that no inconvenience or hardship should be caused to any bona fide owner of any such property. A power to call for the report on the information given to the Magistrate is implicit in the power given to the Magistrate to deal with property seized by the police. No power is given to the police to deal with such property. The power is conferred to the police to seize the property and it extends no further to deal with it and Section 52 immediately comes into effect and requires the police officers to report forthwith about such seizure and then the Magistrate becomes entitled to deal with it. Therefore, there is no question of usurpation of powers of the police, as none are given to the police for disposal of the property after seizure. The Magistrate immediately gets the jurisdiction and authority when he was informed that a property is seized by the police and his jurisdiction is not dependent on the police report. The duty is cast upon the Magistrate to call for a report fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eceipt of the information, stopped the truck in question which came from Bhillad while going towards Nandigam and the panchnama was ordered to be made as there were smuggled goods and the panchnama came to be made, wherein several transistors, lighters of foreign make, and other smuggled goods are alleged to have been found. They were found in 14 packets . 9. In the first part of the panchanama, those smuggled goods and the truck in question were taken into custody for further inquiry, as mentioned in the panchanama, which finds place at pages 59 to 62 in the record of the Judicial Magistrate. The words in Gujarat used are: * * * * * * * The correct rendering of it in English will be: In this truck smuggled goods of foreign make were found. There were 50 packed bales of cotton and the said truck was used for transporting such articles and hence the police had taken possession of these articles and the truck for making further inquiry. In the latter part of that very panchnama, the recital made is about the search of the person of the driver and about finding of some money and also finding of some opium weighing about 15 grms. It is als ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... powers under Section 523 of the Code. In that application, he did state that the truck in question was in the custody of the Customs Superintendent, but he did not state therein that he had moved that authority and that authority had made an order to release the truck on compliance with certain terms imposed. It is significant to note that on making the panchnama of the seizure of these articles by the police officer, he has nowhere stated that he had seized these articles in exercise of his powers under Section 550 of the Code. He has not made any report to his superior officer as contemplated by Section 550 of the Code. He has also not made any report to the Magistrate as contemplated by Section 523 of the Code. What he had done, on the contrary, on that very day, is that he had taken these goods to the customs house and the customs officer had seized these articles in exercise of his power under Section 110 of the Act. 11. The question, therefore, that is posed before me is as to whether in these circumstances, this impugned order can be passed by the Judicial Magistrate. First Class, in exercise of his power under Section 523 of the Code. 12. Mr. Mehta submit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that on that date, the Preventive Officer of Land Customs posted at Mao who had the power to seize the goods was out of station and that P.W. 4, Shri Bhattacharjee, who was only a sepoy was not authorised to seize the articles. Hence, they were caused to be seized by the Assistant Sub-Inspector (P.W. 6) under Section 550, Cr. P.C. Subsequently, by the order of the Inspector-General of Police, dated 25-5-1957, the seized articles were directed to be handed over to the Customs Authorities and P.W. 1, the Deputy Superintendent of Central Excise formally seized them and he made the seizure report Ex. A/3 on 12-6-1957. From Ext. A./3, we find it stated that as the Preventive Officer of Land Customs at Mao was out of station on 11-3-1957, the goods were formally caused to be seized by the police as suspicious property. An inquiry by the Land Customs Department followed and the Collector of Central Excise and Land Customs passed the order Ext. A/7, confiscated the pencils and also the other articles seized, and imposed a penalty of ₹ 1,000/- on 20-3-1958. Subsequently, on 14-11-1958, P.W. 5, the Superintendent of Central Excise and Land Customs, Silchar filed a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Sea Customs Act, the Land Customs Act or the Imports and Exports (Control) Act. In para 17, it is observed: Again, when a Police Officer seized property under Section 550, Cr. P.C., it is his duty to report the matter forthwith to a Magistrate under Section 523, Cr. P.C. and the disposal of such property has to be in accordance with the order of the Magistrate. It is clear from the records in this case that the seizure of these articles was not reported to a Magistrate and no order of a Magistrate was obtained regarding their disposal Ext A/3 shows that the articles were handed over to the Customs Authorities on the orders of the Inspector General of Police. When the articles are seized by the police under Section 550, it is only a Magistrate who can pass orders regarding their disposal and the I.G.P. had no power to order their disposal. I am aware of the provision in Section 180 of the Sea Customs Act, which is as follows: 180. Procedure in respect of things seized on suspicion - When any things liable to confiscation under this Act are seized by any Police Officer on suspicion that they have been stolen, he may carry them to any Police Station or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng time. It was only on the receipt of instructions from the Inspector-General of Police that the goods came to be handed over to the Customs authorities and it was only thereafter they were formally seized by the Customs authorities. In the instant case, there is nothing in the panchnama to show that this Police Officer had seized these articles and the vehicle in exercise of his power under Section 550 of the Code. On the contrary, his conduct indicates to the contrary. He did not make his report to his superior officer. He did not make his report to the Magistrate, as contemplated by Sections 550 and 523 of the Code. He belonged to a Mobile Anti-Smuggling Squad. He received the information about transporting of such smuggled goods and stopped the truck and seized. He took that truck after seizure to the Customs-house. The customs officer, as said earlier, specifically mentioning that the seizure was being made under the Customs Act, seized this truck and the goods alleged to be smuggled. 15. Furthermore, in this very report, the learned Judicial Commissioner has observed in para 18, at pages 292 and 293 (of Cri LJ) = (at p. 39 of AIR): It is better that the Cu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... premises. The warrant of the Magistrate, so to speak, opens the door for entry into a house or premises, and the authority to do so, is based upon the Magistrate's order. The forms prescribed under the Code require that articles seized as a result of the warrant should be brought into court and the Magistrate, who issues a search warrant, is entitled to see that his warrant is not abused, and has been properly executed. In a suitable case, of course, a Magistrate may amend the warrant dispensing with the production of the goods or documents before him. That, however, would be in a clear case only but if the Magistrate so desires, he need not amend the forms, and may keep the control of the goods or documents in himself. This he may find necessary to do, so that the warrant issued by him is not abused or made the instrument of harassment. A condition, therefore, in the warrant that the goods or documents should be produced before the Magistrate must be complied with, and once the goods or documents have been produced before the Magistrate, it is for him to decide, in the circumstances of each case whether he would make them over to the Customs authorities or not. After referrin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the meaning of that section or what are the goods that are seized on the ground that they are liable to confiscation for the purpose of section 179 to be given to the care of the Customs authorities. For making decision on these points, the statement of the belief in the application under Section 172 that induced the learned Chief Presidency Magistrate to issue the search warrant and also the terms of the search warrant may be dependable guides for deciding what was seized on the ground that they are liable to confiscation. That is so, because without the authority of the search warrant of the Magistrate, the goods could not have been seized at all. If the particular articles were seized on the ground that they are liable to confiscation as those were in the same package with goods for seizure of which search warrant was issued, then what is a package within the meaning of Section 168 need also be decided by the Magistrate. It is significant to note that in that case, the goods were not seized by a Customs Officer in exercise of his power under Section 172 of the Sea Customs Act. The reason was that the goods were lying in a locker in a Bank. The Customs Officer ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hat articles seized as a result of the warrant should be brought into Court, and a Magistrate who issues a search warrant is entitled to see that his warrant is not abused, and has been properly executed. In a suitable case, of course, a Magistrate may amend the warrant dispensing with the production of the goods or documents before him. That however, would be in a clear case only, but if the Magistrate so desires, he need not amend the form, and may keep the control of the goods or documents in himself. This he may find necessary to do, so that the warrant issued by him is not abused or made the instrument of harassment. A condition, therefore, in the warrant that the goods or documents should be produced before the Magistrate must be complied with, and once the goods or documents have been produced before the Magistrate, it is for him to decide, in the circumstances of each case, whether he should make them over to the Customs authorities or not. 18. I will now refer to the definition of the words 'proper officer' given in Section 2(34) of the Act. It reads:- 'Proper Officer', in relation to any functions to be performed under this Act, means ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (2) of it, which is material for our purposes, reads:- (2) Any conveyance or animal used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods shall be liable to confiscation, unless the owner of the conveyance or animal proves that it was so used without the knowledge or connivance of the owner himself, his agent, if any, and the person in charge of the conveyance or animal and that each of them had taken all such precautions against such use as are for the time being specified in the rules. That section indicates that such a conveyance can also be confiscated if it is used as a means of transport in the smuggling of any goods or in the carriage of any smuggled goods. Section 110 of the Act does not indicate that such seizure can be made by a proper officer if the goods liable to confiscation under the Act are in the custody of the owner himself . There is general power vested in him to seize the goods wherever they may be if he has reason to believe that the goods are liable to confiscation under this Act. In the instant case, this power has been exercised by the Customs Officer and the goods had come to be seized ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1964, the Assistant Enforcement Officer, Enforcement Directorate, obtained a search warrant from the Chief Presidency Magistrate, Bombay under Section 19 of the Foreign Exchange Regulation Act, authorising him to search shop NO. 157 situated at Mumbadevi Road, Bombay and seize incriminating documents, foreign exchange, instruments, account books, correspondence and passport, if any for the purpose of the enquiry into offence under Sections 4, 5 and 9 of the said Act. In pursuance of this warrant, the Assistant Enforcement Officer, respondent No. 3, accompanied by some other officers of the Enforcement Branch, searched the said premises on the same day. No incriminating documents or other materials were found. One V.R. Patel, who is the appellant in appeal No. 2 of 1965, was then present in the shop. He was searched in the presence of panchas and four packets containing diamonds, believed to be foreign cut diamonds, were found on his person. They were, therefore, seized. There was a safe in the shop the key of which was with the proprietor who was not present then. The safe was, therefore, sealed. One of the enforcement officers then telephoned to a Customs Officer about the seizu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pondents has however, fairly conceded before us that he is unable to justify the seizure of the diamonds under the provisions of Section 151. No other provision of law has been pointed to us under which the diamonds could have been seized or taken charge of by the officers of the Enforcement Directorate. The seizure of the diamonds on 23rd and 24th July, 1964, therefore, appears to have been without authority of law. The diamonds are now in the custody of the Customs Authorities. I will deal separately with the question whether they could lawfully have taken possession of these diamonds. Mr. Poonawalla has contended that as the appellants were deprived of their property without authority of law by the officers of the Enforcement Directorate they are entitled to orders directing respondents Nos. 2 and 3 to return the diamonds to them. The diamonds are, however, no longer in the custody of the Enforcement Directorate and we cannot give directions to respondents Nos. 2 and 3, which they are not in a position to comply with and which will consequently be infructuous. The next question to be considered is whether the customs officers could have seized the diamonds on 4th Septem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e them. In this connection, Mr. Sorabjee has rightly pointed out that Section 110 does not place any limitation as to the person from whose possession or the time and the place at which the goods believed to be liable to confiscation can be seized. If there is reasonable ground to believe that the goods are liable to confiscation, they can be seized from any person who has custody of them, even if he has obtained such custody unlawfully. We are, therefore, unable to accept Mr. Poonawalla's argument that the taking over of possession of the diamonds by proper customs officers on 4th September, 1964, from the officers of the Enforcement Directorate did not constitute seizure within the meaning of Section 119 of the Act. This decision lends support to the conclusion that I propose to arrive at. I rely upon that decision only for the purpose upon that decision only for the purpose that Customs Officer has power to seize the goods if he has reason to believe that those goods are liable to confiscation under the Customs Act, 1962, even though the goods might have been unlawfully seized by some other authorities, like a Police Officer. 26. The decision of the Suprem ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it will be a case of seizure but the idea that it is the unilateral act of the person seizing is the very essence of the concept. Their Lordships were called upon to decide the question whether the seizure was as contemplated by Section 178-A of the Act to enable the Court to raise a presumption that the goods were smuggled. It was only in relation to these facts of the case that the aforesaid observations were made. In that case, it has not been laid down that the Customs Officer has no power to seize such goods, if he has reason to believe that those goods are liable to confiscation if the goods are not in the custody of the owner and the goods have been seized by somebody lawfully and unlawfully in exercise of some powers under other provisions of the Act. The Division Bench of the Bombay High Court has in my opinion, rightly distinguished that Supreme Court decision and has rightly come to the conclusion that a Customs Officer has got power to seize such goods if he has reasons to believe that those goods are liable to confiscation, wherever those goods are 27. As said earlier, this is not the case where a Customs Officer is entitled to seize articles or goo ..... X X X X Extracts X X X X X X X X Extracts X X X X
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