SUSANTA KUMAR ADHIKARY Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) This Revisional application is directed against an order dated 20th April, 1982 passed by the learned Sub-Divisional Judicial Magistrate, Barasat in Customs Case No. 112 of 1982 rejecting the petitioners application for return of the goods seized by the Customs Officer.

(2.) It appears that the petitioners while they were transporting readymade garments old and used said to be of foreign origin in 28 gunny bags by a Matador van from Maslandapur to Calcutta, were intercepted at Santospur on National Highway-34 on 24th March, 1982 at 1 a.m. by the night preventive patrol of the Customs Department and they were arrested under section 104 of the Customs Act, 1962. The carrier Matador van and the garments in question were also seized as the petitioners failed to produce any document in support of lawful importation of the goods and the Customs Officer had reason to believe that they were unlawfully imported into India from Bangladesh in contravention of Sections 11 and 11B of the Customs Act, 1962 and other allied Acts. So the aforesaid garments and the Van are said to be liable to confiscation under Sections 111 and 115 respectively of the Customs Act, 1962. On 24th of March, 1982 Inspector of Customs, Barasat Customs (Preventive Section), reported the arrest of the petitioners to the learned Sub- Divisional Judicial Magistrate, Barasat stating the aforesaid facts in his report. The learned Magistrate on the application of the petitioners granted them bail. Thereafter the petitioners applied before the learned Magistrate for return of the seized articles. The learned Magistrate rejected the prayer for return on the ground that they are alamats of the case and the subject matter of investigation regarding their foreign origin, as alleged by the Customs Officer.

(3.) In challenging the order of the learned Magistrate rejecting the application for return of the seized articles, it is submitted by the learned Advocate for the petitioner that as the report of the Customs Officer to the learned Magistrate indicated that the goods were seized for alleged violation of the provisions of the Customs Act, it is tantamount to giving the control over the seized goods to the learned Magistrate and he had therefore power to grant interim custody of the seized goods in the interest of their proper preservation pending final disposal of the case either before the Customs authority in adjudication proceeding or before the Criminal Court, if any complaint is filed for trial of the petitioners. It is submitted that in any event this Court has inherent power under section 482 of the Code to order grant of interim custody of the seized articles to the petitioners even if the provisions of Section 451, 452 or 457 of the Code of Criminal Procedure did not in terms apply to the custody or disposal of the seized articles. On the other hand, it is submitted on behalf of the Customs Department that the Customs Officer who has arrested the petitioners and seized the garments in question which were being illegally imported from Bangladesh is not a Police Officer and he does not investigate the case under Chapter 14 of the code of Criminal Procedure and therefore the provisions of Sections 451,452 or 457 of the Code of Criminal Procedure are not applicable and the learned Magistrate had no authority to grant interim custody of the seized goods to the petitioners. In this connection, reference has been made to the decision of Delhi High Court in the case of Assistant Collector, Customs, Customs House, Indraprastha Estate, New Delhi v. Tilak Raj Shiv Dayal, Dehradun, which supports the contentions raised on behalf of the Customs in this case. His Lordship Om Prakash, J. held in that case, that the cumulative effect to the provisions of the Customs Act referring to the provisions of Sections 124, 125 and 110, sub-section (2) of the said Act is that a Magistrate has 110 jurisdiction to make orders with respect to the goods seized by the Customs Officer and liable to confiscation under the provisions of the Customs Act, at least before the launching of the Criminal Proceeding. With due respect, I agree with this view.