TEJ BAHADUR SINGH Vs. STATE

JUDGEMENT

(1.) THIS Rule is at the instance of the claimant-petitioner. Tej Baharur Singh, directed against an order dated the 6th September, 1973 passed by Sri N. Maitra, Presidency magistrate, 5th Court, Calcutta, in case no. P. R. 1131 of 1973, allowing the customs officials to seize the lorry No. WBK-8460 in connection with the Customs case, with the direction that the lorry be produced in court on call in connection therewith; and further cancelling the bond furnished by the claimant-petitioner as soon as the lorry was seized.

(2.) THE case is a short and simple one arising out of a prayer made before the court, on behalf of the Customs officials for permission to seize a lorry, being lorry No. WBK-8460, inter alia, on the ground that it carried some smuggled copper lumps imported from bangladesh. The brother of the claimant-petitioner is the registered owner of the lorry No. WBK 8460 and the applicant was authorised by his brother to ply the lorry as public carrier. On the 15th December, 1972 when the driver of the said lorry, one Satdeo Rai, was coming back to Calcutta and the lorry had arrived in front of M/s. New indian Roadways at 155/c, Mahatma gandhi Road, an officer attached to the detective Department along with a force surrounded the lorry and seized 52 bundles purported to belong to one kanti Bhusan Saha, who was arrested along with one Md. Osman and the driver of the lorry under section 54 of the Code of Criminal Procedure. The lorry was also seized and on coming to know about it the applicant filed a petition in the court of the Addl. Chief presidency Magistrate, Calcutta, on the 28th December, 1972 for returning the lorry to him. On the 13th January, 1973 by an order passed by the learned additional Chief Presidency Magistrate, calcutta, the seized lorry was kept in the custody of the applicant on his executing a bond of Rs. 50,000/- undertaking to produce the same on call. The bond was executed and accepted on the 13th january, 1973. On completion of the investigation, the police submitted a challan on the 11th June, 1973 under section 54a of Act IV of 1866 against the aforesaid Kanti Bhusan Saha. The driver Satdeo Rai and the co-accused md. Osman were discharged on the prayer of the police. On or about the 30th July, 1973 Sri S. K. Lodh, Inspector of Customs, West Bengal, filed an application in the court of the learned presidency Magistrate, 5th Court, Calcutta, to whom the case was transferred, praying for permission to seize the abovementioned lorry under section 110 of the Customs Act. By an order dated the 6th September, 1973 the prayer was allowed and the bond was cancelled. The said order has been impugned and forms the subject-matter of the present rule.

(3.) MR. Dilip Kumar Dutta, Advocate (with Mr. D. P. Bagaria, and Miss meera Mullick, Advocates) appearing in support of the Rule made a submission of three dimensions. He contended in the first instance that the impugned order amounts to the passing of a second order under section 523 Code of criminal Procedure and the same is not only dehors the provisions of the statute but also against the principles of natural justice. Mr. Dutta next contended that the learned Presidency Magistrate's order was substantially based on the factum of a wrong mention of the number of the lorry in the bond trying thereby to mislead the Court. The third and last dimension of Mr. Dutta's contentions relates to the merits of the order passed on the 6th September, 1973 viz. , the absence of any reasons mentioned in the application of the Customs Officer for believing that the articles in question are liable to confiscation under the Act and also the absence of the requisite satisfaction on the part of the court before directing the delivery of the vehicle. Mr. Balai chandra Roy, Advocate, appearing on behalf of the Customs authorities joined issue. Mr. Roy submitted that even if the mistake in the number of the lorry given be not wilful, there is no force behind the other submissions of Mr. Dutta relating to the legality of a second order passed under section 523 and the maintainability of the order dated the 6th September, 1973 as being not a speaking order based on the requisite satisfaction enjoined under the statute. Mr. Jogesh Chandra Sinha, advocate, appearing on behalf of the state also opposed the Rule, Mr. Sinha submitted that on the terms of the bond the Court has the right to enforce the production of the lorry in Court and make it over to the party legally entitled to the same and as such the impugned order is not in non-conformance to any provision of law or of any procedure established by law.