DEPARTMENT OF CUSTOMS Vs. PARVINDER KAUR

JUDGEMENT

(1.) Admit.

(2.) Heard learned counsel for the petitioner, Reference to the Metropolitan Magistrate under Section 110 (1B) of the Customs Act is to the "Judicial Magistrate" and not the "Executive Magistrate". This he says on strength of the terms used in Section 104 which provides that every person arrested under sub-section (1) shall without necessary delay be taken to the Magistrate. Since the term "Magistrate" in Section 104 implies a "Judicial Magistrate" in the first instance the term "Magistrate" used in the Act would cannot only a "Judicial Magistrate". I find substance in the argument of the learned counsel. This is a case where the Customs Authority moved an application under Section 110 of the Customs Act for disposal of siezed goods which are required to be verified under Section 110(1B) by the Magistrate who was required to certify the correctness of inventory so prepared and otherwise as per the provisions of sub-clauses (a),(b) and (c) of Section 110 (1B). Upon such an application being made to the ACMM the application was assigned to Shri Dharmesh Sharma, Metropolitan Magistrate, New Delhi. The Metropolitan Magistrate, to whom the application was marked, by order dated 31.1.98 refused to entertain the same on the ground that he is not "Magistrate" under the Act. It is this order that has been challenged by way of the instant petition. Reference to "Magistrate" wherever It has been made in the Act indicates that it refers to a "Judicial Magistrate" and not an "Executive Magistrate". This, I am of the view, is clear from the use of the term in Section 104 of the Act. Although "Magistrate" has not been defined in the Act I am in no doubt that it means "Judicial Magistrate". It was the "Judicial Magistrate" who was competent under Section 110 of the Act to take proceedings as required therein.

(3.) In view of the observation made Cri. M. (M) 2484/98 deserves to be allowed. Accordingly, I allow this petition. The Metropolitan Magistrate is directed to proceed in accordance with law expeditiously. The petition is disposed of.