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TMI Blog2021 (8) TMI 932X X X X Extracts X X X X X X X X Extracts X X X X ..... Ld. SPP for State, Sh. Satish Aggarwala through Cisco Webex. Sh. R.P.Singh, Ld. Counsel for respondent. An application was filed under Section 110 (1B) of the Customs Act, 1962 before Ld. CMM on 26.02.2021. The same was marked to Ld. Duty MM on 01.03.2021. On the same date, Ld. Duty MM had issued notice to the respondent for 23.03.21. On 23.03.21, Ld. Counsel for respondent had sought time to file reply to the application and the reply was filed on 03.08.21. Today written submissions have been filed on behalf of DRI and arguments have been heard on the application. Maintainability of the application was questioned on the first date of hearing before this court in light of several judgments of the Hon'ble Supreme Court and Hon ble High Court of Delhi. Ld. SPP ably argued in support of the application filed and sought time to file certain precedents. After due consideration, vide this order, this court shall proceed to decide the present application. Before proceeding to decide the question of maintainability, it is pertinent to succinctly provide the facts in the matter. Through this application, the department has alleged that foreign currency equivalent to IN ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e any goods, being goods specified under sub- section (1A), have been seized by a proper officer under sub- section (1), he shall prepare an inventory of such goods containing such details relating to their description, quality, quantity, mark, numbers, country of origin and other particulars as the proper officer may consider relevant to the identity of the goods in any proceedings under this Act and shall make an application to a Magistrate for the purpose of - (a) certifying the correctness of the inventory so prepared; or (b) taking, in the presence of the Magistrate, photographs of such goods, and certifying such photographs as true; or (c) allowing to draw representative samples of such goods, in the presence of the Magistrate, and certifying the correctness of any list of samples so drawn. (1C) Where an application is made under sub-section (1B), the Magistrate shall, as soon as may be, allow the application. (2) Where any goods are seized under sub-section (1) and no notice in respect thereof is given under clause (a) of section 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dicial duties which a Judicial Magistrate has to perform. As these duties are in the nature of either executive or administrative one the Judicial Magistrate should not be entrusted with such work, because such work can be discharged by the Executive Magistrates or Sub-Divisional Magistrates. It, is, therefore, necessary to see as to whether any definition of the term 'Magistrate' is given in the Customs Act. la the Customs Act no such definition of the term 'Magistrate' is given, but in Section 3(4) of the Criminal Procedure Code it is provided as under: (4) Where under any law, other than this Code, the function exercisable by a Magistrate relates matters: (a) which involve the appreciation or sifting of evidence or the formulation of any decision which exposes any person to any punishment or penalty or detention in custody pending investigation, inquiry or trial or would have the effect of sending him for trial before any Court, they shall, subject to the provisions of this Code, be exercisable by a Judicial Magistrate; or (b) which are administrative or executive in nature, such as, the granting of a licence, the suspension or cancellation of lice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d to be a precedent on the point especially when Hon ble Apex Court did not delve in to the question under dilemma. The decision was arrived only in facts and circumstances of the case and the petition was dismissed. The Hon ble High Court was again faced with the same question in Department of Customs v. Siddhant Enterprises and Anr., W.P. (Crl.) 556/2014 decided on 27.08.2014, the same bench strength again decided that the word Magistrate is to be as Executive Magistrate. This decision also held that the decision in Crl. M.C. No. 526/2013 was correct and dismissed the objection raised by the Department that a different view was taken by the two Coordinate Benches of Hon ble High Court. It was held that the decision in Crl. M.C. No. 526/2013 discussed the previous decisions. At this stage, it important to recollect that the law of precedents also lays down that when a subsequent decision discusses the previous decisions then the latter in time decision will prevail. This order was challenged before the Hon ble Supreme Court in Department of Customs v. M/s. Siddhant Enterprises Anr., Special Leave to Appeal (Crl.) No. 10280/2015 which was decided on 27.10.2015 as: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction (4) of Section 3 Cr.P.C. Therefore, the word Magistrate appearing in Section 110 (IB) and (1C) of the Customs Act, 1962 must be interpreted so as to be read as a reference to an Executive Magistrate and not to a Judicial Magistrate or a Metropolitan Magistrate. 8. A view to above effect taken by Gujarat High Court in Assistant Collector of Customs vs. Surender Praggar Gosain Anr., (1988) 1 GLR 421 was adopted by a learned Single Judge of this court in Crl.M.C. No.526/2013, titled Directorate of Revenue Intelligence vs. State, decided on 21.02.2013. A contrary view taken by another learned Single Judge of this court in Crl. Misc. (Main) No.2484/1998, titled Department of Customs vs. Parvinder Kaur, decided on 24.08.2000 was apparently per incuriam and does not commend to be the correct approach for the reason the matter was not examined there in light of provision contained in Section 3(4) Cr.P.C. 9. For the foregoing reasons, the petition is devoid of substanceand is accordingly dismissed. In this decision as well, it was held that the decision interpreting the word Magistrate to be Judicial/Metropolitan Magistrate seemed flawed and it was categoric ..... X X X X Extracts X X X X X X X X Extracts X X X X
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