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TMI Blog1989 (10) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... etc. all of foreign origin were seized from different places on 18th November, 1988. The seizure was effected in exercise of the powers under Section 110 of the Customs Act, 1962. These, inter alia, included 676 VCRs., 357 VCPs and 59,900 colour film rolls and 4 photo papers, all valued at Rs.1,66,80,000/- recovered from 201, Sainik Farm, New Delhi, which premises were under the control and possession of Ishwar Parasram Punjabi (the petitioner herein). 3. Pleading that these goods required immediate disposal and further that if these were not disposed of, the same would be destroyed and thus result in national wastage, and that it was in the interest of justice that the case property, namely, the goods which were notified for the purpose of Section 110 (1-A) of the Customs Act are sold or disposed of; the magistrate was approached with the request to certify the correctness of the inventory, taking photographs, and certifying such photographs as true, allowing to draw representative samples of the goods and certifying the correctness of the list of samples so drawn. The application concluded with the prayer that appropriate orders, as required by Section 110 (1-A) and 110 (1-B) o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the basic tenets is the well recognised rule of audi alteram partem i.e. hearing both the parties affected or likely to be affected by an order of any authority or court. The learned Counsel argued that the principle has now been so well accepted that there has been insistence by the courts, as to the requirement of observance of principle of natural justice, which included right of notice and hearing of party, likely to be affected by an order or action, even in respect to administrative matters. He pleaded that the requirement was all the more compelling for a magistrate, who has passed the orders, as the order, though passed in any capacity, partakes the character of judicial orders, and that it is for this Court to ensure that no arbitrariness or un-reasonableness is allowed to creep in, in the proceedings or orders passed by the subordinate courts. 8. Mr. Harjinder Singh has placed reliance in support of this contention on the judgment in the case of Smt. Maneka Gandhi v. Union of India and another, AIR 1978 SC 597, where it was held that the provisions of Section 10(3)(c) of the Passport Act were void inasmuch as these conferred an arbitrary power, since it does not prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... upreme Court A.R. Antulay v. R.S. Nayak and another, (1988) 2 SCC 602, where it was held that violation of principles of natural justice would render the act a nullity. 12. He summed up his arguments in this respect by contending that it is clear by now that the property, which was subject matter of the impugned order, was the case property inasmuch as the petitioner's remand is being taken for his prosecution under Section 135 of the Customs Act and that it now transpires that a criminal complaint has also been filed in the court of the Addl. Chief Metropolitan Magistrate. The petitioner had vested right to be heard in respect to any proposal for disposal of the case property even before the commencement of trial or before hearing in the adjudication proceedings and that failure on the part of the magistrate to give notice of the application to the petitioner shall vitiate any order passed thereon. 13. I find great force in this plea. A plain reading of the provisions of Section 110 (1-A) of the Customs Act makes it manifest that wherever any goods have been seized by a proper officer, under the reasonable belief that the goods were liable to confiscation under the Act then he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion that the person from whom the property is alleged to have been seized is given notice of the application moved by the Customs Department and be heard before an order is passed thereon, and that this would be so even if there is no express provision for a notice of hearing in the relevant provisions because on the authority of the Supreme Court judgments quoted above, such a requirement has to be read into the provisions of law. 17. Mr. Satish Aggarwal, appearing for the respondents practically had no answer to these contentions except for reiterating that the terms of the Statute are very plain and there was no requirement of a notice of hearing and further in terms of sub-section (1-C) of Section 110 of the Act, an application ought to be allowed by the magistrate on being made and as such there was no discretion left with him to follow any other procedure and that the order passed did not contemplate any judicial function and that the arguments based on requirement of fair trial or principle of natural justice were not applicable to cases such as the present one. He however interestingly enough conceded that in similar applications, now being made to the magistrate, the dep ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... disposed of by the magistrate without notice to the accused or any other person from whom goods may have been seized. The department itself seems to have realised this mistake, and in fresh matters notices are being issued at the instance of the department itself, as stated during hearing of this petition. 21. I therefore hold that petitioner's contention is justified to the effect that the order passed by the learned Metroprolitan Magistrate without notice to him, on application under Section 110 (1-A) of the Customs Act, dated 20th April, 1989, was not sustainable, because it stands vitiated owing to the lapse committed in not affording opportunity of hearing, or showing cause against such an application being allowed. 22. I may, however, put on record that this does not mean that this Court endorses on merits, any of the points which Mr. Harjinder Singh stated as being open to an accused, in such a proceeding. These arc left for consideration, and decision, by the concerned magistrate, after notice, and on hearing. They have been noted in the judgment by way of illustration as to in what manner right of a given party could possibly be affected in the absence of notice and h ..... X X X X Extracts X X X X X X X X Extracts X X X X
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