A J BUTLER Vs. MOHANLAL AND CO

JUDGEMENT

(1.) THIS is a reference made by the learned Sessions Judge, Gohilwad Division, requesting us to quash the order, dated 13-10-56, made by the learned judicial First Class Magistrate, Bhavnagar. The impugned order came to be made by the learned Magistrate in the following circumstances. Shri Butler, the Superintendent of Central Excise and Customs (Preventive Branch), Baroda, wrote a letter, dated 6-9-56, to the aforesaid Magistrate requesting for search warrants to be issued under Section 172, Sea Customs Act, 1878, as amended by Section 13 of the Sea Customs (Amendment) Act, 1955. The search warrants were intended to be directed against six shop premises belonging to the six opponents. The seventh warrant was intended for searching the Sate Deposit Vault, in the State Bank of Saurashtra, belonging to opponent No. 1. The learned Magistrate acted on the aforesaid letter and issued the warrants as prayed for. These warrants were executed on the same day, and, in the course of the searches, a large quantity of gold was seized by the persons, to whom the warrants were addressed. The account books of the opponents were also seized in the course of the execution of the warrants. Thereafter, on 7-9-56, _ the opponents made an application to the learned Magistrate, praying, on the grounds mentioned therein, that the articles and account books seized under the warrants may be returned to them. The opponents made two further applications before the learned Magistrate on 10-9-56 and 15-9-56. Their further contentions in these applications were that only search of prohibited goods can be made under the warrants, that the account books could not be attached, that Shri Butler was not the competent authority to apply for the warrants and that the warrants had not been properly and legally issued. On 12-9-56, the learned Magistrate called upon Shri Butler to satisfy him that he was competent to apply for the warrants, and the matter was adjourned to 20-9-56 for the purpose. On the latter date, Shri Butler appeared and asked for an adjournment. On that date, the learned Magistrate framed three issues for decision and fixed the matter for hearing on 29-9-56. The three issues were (1) whether the warrants were issued irregularly, (2) whether Mr. Butler was empowered to apply for and obtain the warrants, and (3) whether the authority under the law was exceeded by seizure of ornaments and books. The learned Magistrate, then, on the date of the hearing, heard the arguments on the aforesaid three points and took his decision on 13-10-56 by the impugned order. The findings which he arrived at were that the warrants were irregularly issued and Shri sutler was not a competent authority to apply for the warrants. As a result of these two findings, the learned Magistrate came to the conclusion that it was not necessary to record a finding on the third issue. As a result, the learned Magistrate cancelled the warrants and ordered the return of the goods and account books seized by the Customs Department. Aggrieved by the aforesaid order, the applicant Shri Butler went in revision to the Sessions Court, Gohilwad. The learned Sessions Judge did not agree with the finding or the learned Magistrate that Shri Butler was not a competent authority. He came to the conclusion that Shri Butler was competent to make an application under Section 172, Sea Customs Act. However, he came to the conclusion that the warrants issued by the Magistrate were void ab initio. The learned Sessions Judge also further came to the conclusion that, though this was so, In his view, the learned Magistrate was not competent to cancel the warrants which he had issued. Consequently, the learned Sessions Judge has made a recommendation to this Court that the impugned order should be set aside. However, the learned Sessions Judge has pointed out certain circumstances, which, in his opinion require to be considered by us before quashing the impugned order of the learned Magistrate dated 13-10-56. He has pointed out that some hardship is likely to be caused to the opponents by quashing the aforesaid order and that, therefore, it would be proper for us to put the applicant on terms before quashing the impugned order.

(2.) THE first point which was canvassed before us was regarding the competency of Shri Butler to make the application under Section 172, Sea Customs Act. That Section reads as follows:

(3.) THE second point which arises for our consideration is whether Shri Butler has the authority to make an application under Section 172 of the Indian Sea customs Act or not. The contention raised by the learned advocate for the opponents was that even if we construe that Shri Butler was a Customs Collector within the meaning of Section 3 (c) aforesaid, still, Shri Butler had not the authority to make the application under Section 172 aforesaid. The contention was raised in the following form It was contended that the mere fact that a person is a Customs Collector within the meaning of the aforesaid definition does not necessarily mean that he has a right to exercise all the duties which are mentioned in all the sections of the Indian Sea Customs Act. It was contended that still the powers and the duties of the persons concerned would be circumscribed by the original document which is the source of the authority of the person concerned. In so far as this submission states that an officer of customs can exercise only such of the powers or the duties which are mentioned in the aforesaid Notification, the sub-mission is correct. But before we can give effect to the aforesaid submission, we must first of all satisfy ourselves that Section 172 aforesaid deals with either the exercise of a power or the exercise of a duty. It is only when we come to the conclusion that Section 172 deals with any of these two matters, that we can come to the conclusion that Shri Butler was not competent on account of the fact that in para 4 of the aforesaid Notification, Section 172 has not been specifically mentioned. Reading Section 172 as a whole we have no doubt whatsoever that it does not confer any power upon a Customs Collector. The power, which is conferred by the aforesaid section, is upon the Judicial Magistrate and not upon the Customs Collector. This is clear both from the wording of the section and the marginal note. We are also not satisfied that Section 172 deals with the exercise of any duty on the part of a Customs Collector, when a person makes an application to a Court of law, he does not exercise a duty. All that he does is that he asks for a relief or a remedy. In our opinion, the Customs Collector has been given a right to make an application and this right he derives by virtue of the fact that he is a Customs Collector within the meaning of the aforesaid Act Therefore, in our opinion, as Shri Butler comes within the definition of Customs Collector, the conclusion is inevitable that he is also competent to make the application under Section 172 of the Sea Customs Act. Therefore, we agree with the conclusion of the learned Sessions Judge that Shri Butler had the right to make the application under Section 172 aforesaid.