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TMI Blog2023 (5) TMI 942X X X X Extracts X X X X X X X X Extracts X X X X ..... udication proceedings and has wrongly made an application before the Learned Court. The Learned Court also without appreciating the provision of Customs Act has wrongly passed the order on 05.04.2018, though, the show cause notice had been issued prior to that of the order passed by the Learned Court proposing confiscation of the goods as well as imposition of penalty, therefore, the Learned Court on 05.04.2018 ought not to have passed such order for return of the seized goods when the same has been taken care of by the adjudicating authority in terms of the Customs Act. The Supreme Court in Sunderbhai Ambalal Desai vs State of Gujarat, Special Leave Petition [ 2002 (10) TMI 773 - SUPREME COURT ] laid down the guidelines for return of seized article/vehicles etc. as per section 451 of the Cr.P.C. But the Customs Act has its own provisions for search, seizure, confiscation etc. laying down the detailed procedure in respect of cases under the Act. The Magistrate did not act in the interest of justice and the said order dated 05.04.2018 read with order dated 05.12.2018 passed in Complaint Case No. 1108 of 2016 arising out of Seizure Case No. 1/Seizure/CL/IMP/CUS/GD/2016 date ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... yellow coloured metallic bars believed to be gold of Foreign origin weighing 2.648 kgs., valued at Rs. 81,84,000/- only from his possession. The goods were concealed in between the feet and sole of his shoes (one piece under each foot). (b) That a Panchanama of the incident was drawn in presence of two independent witnesses and a copy of the same was handed over to the opposite party. On demand by the Customs Officer the opposite party failed to produce any document whatsoever in support of legal importation, possession, acquisition or transportation of the said goods. Hence, inventory of the said goods was done in presence of two independent witnesses and were seized under section 110 of the Customs Act, 1962 vide seizure case no. 01/Seizure/CL/IMP/CUS/GD/2016 dated 22.09.2016 on the reasonable belief that the said goods so recovered had been illegally imported into India from Bangladesh through an unauthorized route in contravention of section 7(c) of the said Act read with section 77 of the said Act, Rule 3 of Baggage Rules, 2016 and Regulation 3 of the Customs Baggage Declaration Regulations, 2013, thus, rendering the goods liable for confiscation under Section 111(b) and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y and in reply to the same dated 22.12.2016 the opposite party however claimed to be the owner of the seized gold and stated that he wants to receive it back by depositing nominal customs duty in terms of section 125 of the Customs Act. (l) Since the investigation of the case could not be completed within six months, under the provision of section 110(2) of the said Act the Commissioner of Customs (Preventive), West Bengal, Kolkata granted further extension period of six months for issuance of show cause notice vide Adjudication Order No. 43/CUS/CC(P)/WB/2016 dated 15.03.2017. Thereafter further investigation was conducted. (m) A show cause notice dated 01.09.2017 was issued under section 124 of the Customs Act, 1962 to the opposite party proposing as to why the seized gold weighing 2.648 kgs. and having value of Rs. 81,84,000/- should not be confiscated under section 111(b) and 111(d) of the said Act as well as why penalty under section 112 of the said Act should not be imposed. (n) A written reply dated 10.10.2017 was submitted on behalf of the opposite party by his learned Advocate against the show cause notice dated 01.09.2017. (o) That the Department is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... x months of the seizure the goods, the goods shall be returned to the person from whose possession the goods have been seized. But in the present case the notice has been issued for extension of time to issue the show cause in terms of section 124 of the Customs Act and ultimately, the show cause notice under section 124 of the Customs Act, 1962 was issued to the opposite party on 01.09.2017 and the opposite party has filed his reply to the said show cause notice on 10.10.2017. 7. That the opposite party being aware of the legal provision has filed his reply but has purportedly avoided the personal hearing in spite of three opportunities of hearing being granted by the adjudicating authority. The opposite party without availing the said opportunity has purportedly filed the application on 19.01.2018 before the Learned Court praying for return of the goods. 8. That section 110A of the said Act clearly provides provisional release of goods, documents and things seized pending adjudication. The opposite party at no point of time made any application for provisional release of the goods before the Customs Authority. 9. That section 122 of the said Act provides adjudication of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... horities and this Court has got no function in either the confiscation or non-confiscation of the seized articles. The question of issuance of notice by the customs authorities and extension of period by Commissioner of Customs is not the jurisdiction of the Court, but when the process of inventory is already completed by the Magistrate and when the seized articles are not considered as prohibited articles as itemized in the Customs Act and when the goods or the seized articles are photographed and certified in presence of Magistrate then return of the seized articles in absence of confiscation can be given by the Court after furnishing a proper bond. In the result, the petition partly succeeds. Hence, Ordered that the seized articles in connection with the case be returned to the accused on furnishing a bond of Rs. 1 crore and on further conditions that the accused will be liable to produce such articles before the Court as and when called for by the Court. It is also clarified that the accused will not dispose the articles till the final disposal of the case. Sd/- Chief Judicial Magistrate, Nadia 16. The Supreme Court in Sunderbhai Am ..... X X X X Extracts X X X X X X X X Extracts X X X X
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