THE STATE OF ASSAM Vs. SRI. DIPAL BARDHAN

JUDGEMENT

(1.) THE short point mat arises for decision in this application by the state is, whether a Criminal Court can pass any order in respect to matter for which the legislature has provided a separate machinery for adjudication. In the instant case, a prosecution was launched against the opposite party under Section 135 of the Custom Act, 1962. Thereafter referred to as the Act, On 5.11.77, so(sic) wrist watches were seized from possession of the opposite (sic) on being conducted in his shop and dwelling hour. (sic) mation that smuggled watches which were concern (sic) in that house. Along with the wrist watches which were of S(sic)s and (sic)made, currency notes worth Rs. 5,550.00 were also covered along with the note book showing the transaction of sale and receipt of foreign watches. The opposite party was bund guilty under Section 135 of the Act and was convicted thereunder by the Chief Judicial Magistrate, Sibnagar by judgment passed on 3.3.79 in C.R. Case No. 4767/77. Ha was sentence to under R.I, for two years and also to pay a fine of Rs. 5,000 (sic) default, R.I, for one year, There was a further (sic)ctior in order that the seized writ watches and also (sic) seized m(sic) were (sic) be confiscated to the State.

(2.) THE opposite party preferred in appeal which was heard and disposal of by the learned Session Judge, U.A.D. Jorhat. The learned session(sic) upheld the conviction but modified the sentence passed(sic) O.P. the Appellant before aim. The period of (sic)nnr was reduced to the period already undergone. the amount of fin was reduced from Rs. 5,000.00 to Rs. 2,0(sic) in (sic) undergo R.L. for one year. However. there was (sic) by the learned Sessions Judge which is serious invested as application before me by the learned Public Prosecutor Assam. Mr. D.N. Choudhury. The learned Sessions Justice directed that the currency notes seized from the possession the opp the patty should be returned to him within a period of the month. This directed he made upon holding the there were evidence on record to establish that the seized tenancy ho were the sale proceeds of the smuggled goods According to the learned Sessions Judge, the trial Court was wrong putting (sic) burden on the opposite party to prove that the (sic) was the sale proceeds of foreign watches. His holding was that (sic) burden rested solely on the prosecution to establish satisfactory that the subject money was the sale proceeds of (sic) saugg goods. The learned Judge further observed, rat suppressing that confiscation of the amount by the custom throatier the departmental proceedings was not justice indeed (sic) observation we do not find in the judgment of the trial Court. The short p(sic) canvassed in this application relates to the finding and the decision of the learned Sessions Judge by which the seized currency notes were directed to be returned to the (sic)ed -application. The learned Public prosecutor submits that the impugned o(sic) is patently without jurisdiction and that it has been made on erroneous appreciation of relevant provisions of the Act. He has drawn my attention to the fact that the customs Act is an hybrid Act. There are authorities under the Act invested with powers to deal with the offensive activities administrative we level and that Chapter -XIV has to be taken consider on organically for appreciating this position. The chapter (sic) acr(sic) Sections 111 to 127, Section 111 empower confiscation of improperly imparted goods which are quoted (sic) an authorities berein (sic)larly classed as "sined smuggled goods" goods. Section 112 enable penalty (sic) the (sic)or improper importations of goods etc. Section envisages penalty For not accounting for goods End Section 1(sic) penalty: contravention etc. not expressly mentioned, Section 121, and which centres the controversy raised in this (sic)sation; important and may be quoted:

(3.) THERE no doubt that the learned Sessions Judge misdirected himself in making the impugned direction in view of the provisions discussed above. Section 127, as I have indicated, was a clear pointer to indicate the line of demarcation of the jurisdiction of the Criminal Court under Chapter -XVI and the other authorities ("officers of customs") acting under Chapter -XIV of the Act. The submission of Mr. Choudhury, in my opinion, therefore must prevail. The impugned directions are patently without jurisdiction and are liable to be set aside. In view of the fact that this aspect of (sic) matter was not considered at all by the learned scissions Judge (sic) Choudhury took me through the evidence of P.W. (sic) the Assistant Collector of Custom who was the officer empower under the Act to make ... an order for confiscation of the said currency notes as sale proceeds of the smuggled goods. His evidence is that on 11.1.77, foreign -made watches as well as cash money was recovered from the possession of the Appellant. The next day the opposite party made a statement in respect thereto and the watches deposited in the godown. On receipt of the "case report", a show cause notice was issued to the opposite party who made his representation. On 24.11.77. personal hearing was given to him, The case was departmentally decided, He was found guilty and a penalty of Rs. 5,000.00 was imposed on him. The seized watches as well as the money were confiscated, Thereafter, sanction was, sought from the Collector of Customs and Central Excised for the prosecution of the Appellant which was granted by Act 5. Mr. Choudhury has also drawn my attention to the petition of appeal filed by the opposite party in the Court of Sessions Judge in which the Appellant admitted that in the purported exercise of powers under Section 112 of the Act, the Assistant Collector of Central Excise while adjudicating the case against him passed an order on 11.1.78 confiscating the watches had the sum of Rs. 5,550/ - besides imposing a fine of Rs. 5,000.00 of him. He also stated that there was an 'appeal by him against that order which had not been disposed of till their on this transaction, Mr. Choudhury further draws my attention to the provisions of Section 128 of the Act which provides, inter alia that any person aggrieved by any decision or order passed under the Act by an Officer of customs lower in rank than a Collector of Customs may appeal to the Collector (Appeals) within three months from the date of communication of such decision or order. There is a further provision for second appeal to the Appellant Tribunal under Section 129A of the Act. Therefore submits the learned Counsel, any decision rendered or order passed or action taken in exercise of powers conferred by Chapter -XIV of the is in itself complete and competent and there is a complete machinery for appropriate remedy in appeal for an aggrieved Persia and the remedy provided under Chapter -XIV executes the jurisdiction of the Criminal Court under Section 127 to deal with the same matter. I have no hesitation to accept this position which appears to' me perfectly obvious in view of the provisions of Chapter -XV. There is no doubt that in the case under Section 121, the appropriate authority, namely the Assistant Collector of Customs, had the power to confiscate the amount which he considered to be the sale proceeds of smuggle, goods, namely, wrist watches. Whether the power was validity exercised in terms of Section 121 is not for the Criminal Court to consider because there is a different forum proved for given the matter under the Act, The fact that the currency note seized from the possession of the opposite party could not be held, to be the sale proceeds of the smuggled goods i.e. the wrist watches, as was contended before the Court below had to be decided in the proceedings under Chapter -XIV or XV The provision of Section 127 excluded the jurisdiction of the Courts acting under the provisions of Chapter XVI of the Act to consider any matter which could be adjudicated under Chapter -XIV and the ''award of any confiscation or penalty made the under could only be challenged in the manner provided in Chapter XV relating to "appeals" emulating from any vision or order" made under Chapter -XIV, However, I am unable to accept the submission of Mr. Choudhury that he can in(sic) the an of Section 126 in his case because I had it did to holding that the sale proceeds of smuggled goods can be considered to be the "goods confiscated under the Act". Whatever that may be the bar of Section 127 is clear and is operative in this case disabling the O.P. to agitate the issue in his appeal against this conviction and sentence passed by the trial Court under Chapter -XVI of the Act.