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TMI Blog2019 (5) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... stoms Act, 1962 - at the stage of investigation being conducted by the Customs Officers that the provision of Section 451 of the Cr.P.C., 1973 thus do not operate. It is apparent that despite the non-existence of a specific bar to the jurisdiction of Courts in the Customs Act, 1962 to release of the seized goods during investigation by the Customs Authority, the Trial Court could not have invoked the provisions of Section 451 of the Code of Civil Procedure, 1973 for release of the vehicles in question on superdari in as much as the seizure of the two vehicles in question was not subject matter of any inquiry or trial before the learned CMM at the time of consideration of the prayer for release of the vehicles on superdari. The impugned orders of the learned Trial Court are thus set aside - petition disposed off. - Crl.M.C.No.4316/2016 and Crl. M.A. Nos. 17965/16, 20232/16, 12268/17, 16064/17 and 16066/17, Crl.M.C.No. 4767/2016 and Crl.M.A. No. 19836/2016 - - - Dated:- 24-4-2019 - MS. ANU MALHOTRA J. Petitioner Through: Mr. Satish Aggarwala, Advocate Respondents Through: Mr. Dalip Singh, Advocate JUDGMENT ANU MALHOTRA, J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction to release the same on any condition whatsoever. It was also contended on behalf of the petitioner that the vehicle having been produced before the Court could not have been released in terms of Section 451 of the Cr.P.C. and that the Customs Act, 1962 being a Special Act under which the vehicles used for receiving, carrying and transporting smuggled goods had been seized as per the provisions of the Customs Act, the provisions of the Special Act override the general provisions of the Code of Criminal Procedure and that there is no inherent power vested with the learned Chief Metropolitan Magistrate to release the said vehicles on superdari. It was also submitted on behalf of the petitioner that the vehicles were liable to confiscation under the Customs Act, 1962 and on confiscation, the ownership of the vehicle vests with the Central Government and that at the time of confiscation the vehicle has to be offered to the Central Government and that the Central Government cannot be relegated for institution of a civil suit for recovery or possession of the vehicle. 3. Inter alia it was submitted on behalf of the petitioner that the reliance placed in the impugned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e was no error in the order of the learned Trial Court directing the interim release of the vehicles. 6. The verdict of this Court in Manjeet Singh v. State (supra) a verdict dated 10.9.2014 was on facts in which a vehicle which was stolen had been seized and an FIR bearing No. 56/2009 was registered at Police Station Defence Colony on 20.2.2009 and the car was recovered by the police on 20.7.2009 and was released to the petitioner on 4.8.2009 whereafter on 5.6.2013, the petitioner moved an application under Section 451 of the Cr.P.C. for permission to sell the vehicle on the ground that it was more than five years later and that it required a lot of maintenance and repair and its market value had depreciated when vide order dated 19.9.2013, the learned ASJ allowed the petitioner to sell the vehicle in question subject to the condition that the prospective/intending purchaser executed a superdarinama bond to produce the vehicle as and when required which was assailed by the petitioner in Manjeet Singh s case submitting to the effect that he had sought permission to sell the vehicle unconditionally in view of the verdict of the Hon ble Supreme Court in Sunderbhai Ambalal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore such property to the Court if the order made under sub- section (1) is modified or set aside on appeal or revision. (3) A Court of Session may, instead of itself making an order under sub- section (1), direct the property to be delivered to the Chief Judicial Magistrate, who shall thereupon deal with it in the manner provided in sections 457, 458 and 459. (4) Except where the property is livestock or is subject to speedy and natural decay, or where a bond has been executed in pursuance of subsection (2), an order made under sub- section (1) shall not be carried out for two months, or when an appeal is presented, until such appeal has been disposed of. (5) In this section, the term property includes, in the case of property regarding which an offence appears to have been committed, not only such property as has been originally in the possession or under the control of any party, but also any property into or for which the same may have been converted or exchanged, and anything acquired by such conversion or exchange, whether immediately or otherwise. . 457. Procedure by police upo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Karnataka: ILR 2002 KAR 3751, Sunderam Finances Limited v. State of Tamil Nadu (2011) 1 MWN (CRI) 437, it was held vide paragraphs No. 94 to 100 of the verdict of this Court in Manjeet Singh (supra) to the effect: 94. In compliance with the directions of the Supreme Court in Basavva Kom Dyamangouda Patil v. State of Mysore (supra), Sunderbhai Ambalal Desai v. State of Gujarat (supra 1), Sunderbhai Ambalal Desai v. State of Gujarat (supra 2) and General Insurance Council v. State of A.P. (supra), the SHO/IO shall file applications and produce the case properties presently in custody of Delhi Police before the concerned Court within one week whereupon the concerned Court shall pass appropriate order within one month thereafter. 95. With respect to fresh seizure of properties, the SHO/IO shall produce the case properties before the concerned Court within one week of the seizure whereupon the Court shall pass appropriate order within one month thereafter. 96. Since the Supreme Court has fixed responsibility of the Registry of the High Court to ensure the compliance of its directions, the Delhi Police shall submit a quarterly compliance report befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e during trial is not necessary and the photographs of the vehicle would be sufficient to be proved in evidence. The Committee appointed by the Chief Justice of this Court in their Report which was circulated to all the judicial officers also clearly approved the said procedure. However, in utter violation of the Supreme Court judgments as well as the Report of the Committee of this Court, the learned Sessions Court held that the vehicle would be required during evidence. The Sessions Court further gravely erred in recording that the accused may stake a claim on the vehicle without even asking him. When the accused appeared before this Court on 13th December, 2013, he clearly staked no claim on the vehicle and had no objection for the sale of the vehicle. The least expected from the learned Sessions Court was to have asked the accused whether he had any claim or objection to the sale of the vehicle. The petitioner being a registered owner of the vehicle which was stolen and recovered from the possession of the accused, the view taken by the learned Sessions Court (without even asking the accused) that the accused, the alleged thief, would stake a claim is clearly perverse. The lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dings dated 9.3.2018 and the pendency of the petition and taking into account the factum that the impugned order is a common order even in relation to the accused Inder Prakash Kohli qua the vehicle Honda city car bearing No.DL-4C-AH-8319, it is considered essential to determine the question of law involved in the matter which relates to the aspect of the applicability of Section 451 of the Cr.P.C. to articles confiscated under the Customs Act, 1962, and their seizure under the Customs Act, 1962, and qua which notices to show cause for confiscation have been issued. 9. The respondents have submitted that they are suffering unnecessarily in as much as their vehicles worth lakhs of rupees are lying with the department as a junk and that the DRI did not choose to challenge the release of the third vehicle allowed to be released by the impugned order. 10. The verdict of this Court in Assistant Collector of Customs, Customs House, Indraprastha Estate, New Delhi v. Tilak Raj Shiv Dayal, Dehradun: AIR 1969 DELHI 301 decided on 14.2.1969 , lays down categorically that a Customs Officer under the Customs Act, is not a police officer within the meaning of the expression ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as categorically observed vide para 10 of the said verdict which is to the effect: 10. In this view of the matter, therefore, the argument of Shri Harjinder Singh that the trucks in question may become a mere junk and total loss in case they are permitted to remain the control and custody of the Customs authorities for lack of proper up-keep and care dwindles to insignificance. Obviously the intention of the legislature is that the Customs authorities must bestow proper case and attention to the goods like the present seized by them so long as they remain in their custody and control. It may be, however, made clear that it shall be open to the persons having any right and interest in the trucks in question as registered owners thereof or otherwise to apply afresh for interim custody, if and when these trucks are produced in the course of inquiry or trial. , holding thus to the effect that the persons having any right and interest in question in that case as registered owner thereof or otherwise could apply afresh for an interim custody if and when those trucks were produced in the course of inquiry or trial. Vide order dated 12.8.2004 in Crl.Rev. Petition No. 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 on the very day. The goods were initially seized by the Police Officer. Admittedly when the application came to be made by the petitioner to the Magistrate under Section 523 of the Code, these goods were already seized by the Customs Authorities in exercise of power under Section 110 of the Act. 14. Reliance was also placed on behalf of the petitioner on the verdict of this Court in Directorate of Revenue Intelligence v. Amit Kumar: Criminal M.C. No. 5320/2013, a verdict dated 22.11.2016 wherein the release directed on superdari of a vehicle a Toyota Fortuner from which 95.350 Kg. of a contraband substance were recovered by the Directorate of Revenue Intelligence Officers wa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... written submissions it has been submitted that against the order dated 18.11.2016 in Crl. M. C. No. 4316/16 vide which the operation of the impugned order dated 31.8.2016 in the case of Sunny Kakkar was stayed, LPA 91/17 had been preferred by Sunny Kakkar, Respondent No.2, the director of M/s PRK Diamonds Pvt. Limited, the respondent No.1, decided on 15.3.2017 and the said LPA, was held to be not maintainable observing to the effect that order dated 18.11.2016 of this Court had been made in exercise of criminal jurisdiction and that the respondents filed three SLPs against the orders dated 18.11.2016 and 23.12.2016 (there appears to be a typographical error and the order dated 23.12.2016 be read as order dated 20.11.2016 in Crl.M.C. No. 4767/2016 in Directorate of Revenue Intelligence v. Inder Prakash Kohli @ Baboo) in which the operation of the impugned order of the learned Trial Court permitting the release of the vehicle to Inder Prakash Kohli had been stayed and also assailed the order dated 15.3.2017 of the Division Bench of this Court in LPA 91/17 and submitted that the Hon ble Supreme Court observed that it was not inclined to interfere in the order dated 15.3.2017 of the D ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m Choudhary: Crl.M(M) No. 680/1998 in which a Maruti car was allowed to be released on superdari though it had been contended that the car had been purchased from foreign currency illegally brought by the brother of the respondent and it was observed that there was no reason to interfere with the exercise of jurisdiction under Section 451 of the CPC. 20. Reliance was also placed on behalf of the respondents on the verdict of this Court in Smt. Narender Kaur v. Arun Sheoran (supra), which had also been relied upon on behalf of the petitioner contending to the effect that in that case, the vehicle was not released during the pendency of the case in as much as it was not certain that the vehicle belonged to the petitioner. Reliance was also placed on behalf of the respondents on the verdict of this Court in Madan Lal v State, National Capital: 2002 IV AD (Delhi) 177 which was a case in which 400 gms smack was recovered from inside the cabin of the seat of the driver of a Tempo and in terms of Section 63 of the NDPS Act, 1985, the said vehicle was liable to confiscation and it was thus held that in terms of Section 60(3) and Section 63 of the NDPS Act, 1985, neither Se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DPS Act, 1985, the same is no ground to assume that it would be confiscated merely because the release of the property would be regulated in accordance with the well settled judicial ways and not because that there was a stringent law applicable at the time of the punishment. 24. Reliance was also placed on behalf of the respondents on the verdict of this Court in Manjit Singh v. State; (supra) the verdict dated 10.9.2014 which made reference to the verdict of the Hon ble Supreme Court in Sunderbhai Ambalal Desai (Supra) and in General Insurance Company v. State of U.P. (supra) to contend that the ratio of the said verdict in relation to release of vehicles seized by the police would apply to seizures effected under the Customs Act, 1962. It has also been held by the learned Trial Court and that the precautions and observations mentioned in the judgment in Manjeet Singh (Supra) were only limited to the release of the vehicle, and that the guidelines laid down in Manjit Singh (Supra) to the effect: Vehicles 68. Vehicles involved in an offence may be released to the rightful owner after preparing detailed panchnama; taking photographs of the vehicle; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e changed context of times. The reception of secondary evidence is permitted in law. The techniques of photography and photo copying are far advanced and fully developed. Movable property of any nature can be a subject matter of photography and taking necessary photographs of all the features of the property clearly is not a impossible task in photography and photo copying. Besides, the mahazar could be drawn clearly describing the features and dimensions of the movable properties which are subject matters of criminal trial. 90. Irrespective of the fact whether the properties have evidentiary value or not, it is not necessary that the original of the property has to be kept intact without alienation. As suggested above, the photography or photostat copy of the property can be taken and made a part of the record duly certified by the Magistrate at the time when the interim custody of the property is handed over to the claimant. In the event of the original of the property not produced in the evidence, photograph could be used as secondary evidence during the course of evidence. Ultimately, while passing final orders, it is only the value of the property that becomes a pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ning the particulars of the cases in which the appropriate order has been passed within one month of the application. If any case could not be disposed of within 30 days, particulars thereof along with the reasons be also submitted. The first compliance report for the period 1st October, 2014 to 31st December, 2014 be filed by 15th January, 2015. 98. With respect to the submission of Delhi Police that the District Nazir is not equipped to deal with the order with respect to the sale/auction of the case properties and therefore, Provisioning Logistics Department of Delhi Police be allowed to deal with the sale/auction of the case properties, it would be appropriate for the Delhi Police to take up the matter with the High Court on the administrative side and no orders are warranted in this petition. Present case. 99. In the present case, the petitioner is registered owner of the car in question and the accused has no objection to the petitioner being permitted to sell the vehicle and in that view of the matter, the learned Sessions Court should have permitted the petitioner to sell the vehicle after taking photographs of the same. The Supreme Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... filing the LPA against the order dated 18.11.2016 in exercise of criminal jurisdiction. 26. Chapter XXXIV of the Cr.P.C., 1973 deals with the disposal of the property. In terms of Section 451 thereof an order for custody and disposal of property can be made. Section 451 of the Cr. PC, 1973 reads to the effect: 451. Order for custody and disposal of property pending trial in certain cases. When any property is produced before any Criminal Court during any inquiry or trial, the Court may make such order as it thinks fit for the proper custody of such property pending the conclusion of the inquiry or trial, and, if the property is subject to speedy and natural decay, or if it is otherwise expedient so to do, the Court may, after recording such evidence as it thinks necessary, order it to be sold or otherwise disposed of. Thus, for the applicability of Section 451 of the Cr.PC, 1973 an inquiry or trial has essentially to be in progress. 27. The inquiry in terms of Section 2(g) of the Cr.PC, 1973 is defined as meaning every inquiry other than a trial, conducted under this Code by a Magistrate or a Court . 28. As laid down by the Hon ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dangerous nature and taking into account the depreciation in the value of the goods with the passage of time, constrained storage space for the goods or any other relevant consideration by notification in the official gazette which notification is also to satisfy the goods or classes of goods through which the disposal may be ordered under Sub-section (1) of Section 110 of the Customs Act, 1962. Consequently, Section 110(1) of the said Act provides as follows: 110. Seizure of goods, documents and things.- (1) If the proper officer has reason to believe that any goods are liable to confiscation under this Act, he may seize such goods: Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. 33. In terms of Section 110(2) of the Customs Act, 1962, it has been specifically laid down that where any goods are seized under Sub-section (1) of Section 110 and no notice in respect thereof is given under clause (a) of Section 124 in the Act of the seizure of the goods, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mmissioner of Customs informing the person from whom the seizure has been made on the grounds on which it is proposed to confiscate the goods or to impose a penalty. In terms of Section 125 of the said enactment it has been specifically laid down that the officer adjudging at the time of confiscation of the goods may impose a fine in lieu of confiscation as the officer thinks fit. Section 125 of the Customs Act, 1962 provides as follows: 125. Option to pay fine in lieu of confiscation.- (1) Whenever confiscation of any goods is authorised by this Act, the officer adjudging it may, in the case of any goods, the importation or exportation whereof is prohibited under this Act or under any other law for the time being in force, and shall, in the case of any other goods, give to the owner of the goods 1[or, where such owner is not known, the person from whose possession or custody such goods have been seized,] an option to pay in lieu of confiscation such fine as the said officer thinks fit: Provided that, without prejudice to the provisions of the proviso to sub-section (2) of section 115, such fine shall not exceed the market price of the goods confiscated, less in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elation thereto, is significant. 45. Significantly, the Hon ble Supreme Court in the State of Madhya Pradesh v. Uday Singh: Criminal Appeal 524/2019 by a verdict dated 26.3.2019 has inter alia observed to the effect that vide the Indian Forest Act, 1927, specific provisions have been made for the seizure and confiscation of forest produce and tools and weapons and articles used in the commission of offences punishable under the Indian Forest Act, 1927, which had been infused with a salutary public purpose and that the order of confiscation under the said enactment is subject to an appeal provided under Section 52A and a revision vide Section 52B. 46. It was reiterated vide this judgment that a criminal prosecution and a proceeding for confiscation are distinct and are two parallel proceedings and that criminal prosecution is not an alternate to confiscation proceedings, and that the mere fact that there was an acquittal in a criminal trial before a Magistrate due to paucity of evidence would not necessary result in nullifying the order of confiscation passed by an authorized officer based on a satisfaction that a forest offence had been committed. 47. Und ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... steps for conducting of investigation within six months which had expired and there was no prayer made by the Customs Department permitting disposal and that in the case of M/s Eastern Carriers (Supra) the department itself made an application for permission to dispose of the Toothpastes which were perishable in nature and thus it is apparent that the facts of the two cases were not in pari materia with each other and thus apparently the facts of the instant case are not in pari materia to that of the case in Eastern Carrier (Supra) as allegedly contended on behalf of the petitioner. 51. Further more the reliance placed on behalf of the respondents on the verdicts of this Court in Manjeet Singh (Supra) and the verdict of the Hon ble Supreme Court in Sunderbhai Ambalal Desai Ors. v. State of Gujarat (Supra) is misplaced as they relate to cases where the provision of Section 451 of the Code of Civil Procedure, 1908, 1973 was applicable, which is not so in the instant case, in as much as the seizure of the two vehicles in the instant case was not subject matter of any inquiry or trial before the learned Trial Court when it passed the impugned common order dated 31.8.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or not to give option to pay fine in lieu of confiscation, but in case of other goods, such option has necessarily to be given Section 125 of Customs Act, 1962.[ paras 13,16] Writ jurisdiction Redemption fine Prohibited goods- Adjudicating authority is not obliged to give option to pay fine in lieu of confiscation in case of prohibited goods If such option is not given, no writ of mandamus would lie- Section 125 of Customs Act, 1962. [paras 13, 14] 44.2 Further, it appears that gold stands out on a different pedestal than other goods. It is prohibited no doubt and thus liable for confiscation. To release it, it must comply with statutory conditions. Moreover the circumstances of the case also need to be factored in, especially the form in which the gold was attempted to be smuggled. A guilty mind is evident from the circumstances that the seized gold found to be concealed in baggage wrapped with black colour adhesive tape and if not subjected to customs check would have escaped detection. It means that they intentionally made plan to smuggle the gold and took all steps to conceal them and tried for swift exit from Green Channel instead of Red Channe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fer any redemption to the seized gold. 46. I find that in the instant case, the Noticees failed to satisfy the customs authorities regarding purpose and intention of the importing gold in India by supporting evidences. Further, the Noticees could not produce the documentary evidence in support of the licit possession of the recovered gold. Hence, the ownership of the Noticees is in dispute. Further, as per Section 123 of the Customs Act, 1962, the burden of proof regarding ownership of the seized goods lies upon the Noticees, but they failed to prove the same thereore they cannot escape from the penal actions for their omission and commission. 47. I find that the Noticees had an intention to evade payment of the Customs Duty leviable on the goods, due to which they tried to import and clear clandestinely. The Noticee was intercepted with dutiable goods and the value of dutiable goods carried by him was not deliberately filled up in Indian Customs Declaration Slip and knowingly intentionally did not make true and proper declaration before Customs officer as required under Section 77 of the Customs Act, 1962. The Noticees attempted to smuggle the goods with in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hassan under Section 112(a) and (b) and 114AA of the Customs Act, 1962. iii) I also impose a penalty of ₹ 13,70,000/- (Rupees Thirteen Lakhs Seventy Thousand only) each upon Anju Kumar and Hari Sharan Khanna under Section 112 (a) and (b) of the Customs Act, 1962. 54. Thus, it is apparent that despite the non-existence of a specific bar to the jurisdiction of Courts in the Customs Act, 1962 to release of the seized goods during investigation by the Customs Authority, the Trial Court could not have invoked the provisions of Section 451 of the Code of Civil Procedure, 1973 for release of the vehicles in question on superdari in as much as the seizure of the two vehicles in question was not subject matter of any inquiry or trial before the learned CMM at the time of consideration of the prayer for release of the vehicles on superdari. The impugned orders of the learned Trial Court are thus set aside. The petition Nos. Crl.M.C. Nos. 4316/2016 and 4767/2016 are thus allowed. 55. It is however open to the respondents to seeks redressal in accordance with law against the order dated 1.12.2017 of confiscation qua the Mercedes Car No. DL-1CQ-7525 and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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