RAHIM KHAN Vs. UNION OF INDIA

JUDGEMENT

(1.) Both these, petitions are similar as it appears that after filing S.B. Cr. Misc. Petition No. 169191, the second application has been filed by another lawyer by mistake, as such, no order is required in S. B. Cr. Misc. Petition No. 177/91.

(2.) The facts of the case are that the Custom Officers checked truck No. RRM 4045 near Jaisalmer, which is at a distance of about hundred kilometers from Indo-Pak border. In the said truck 3 bags, containing imitation rough (Kharhed), were found on the roof of the cabin of the truck. The police also recovered Rs. 14,900/-. It is not disputed before me that the recovered articles are not contraband articles, but the accusation against the accused persons is that they wanted to smuggle the said articles to Pakistan. The petitioner is the registered owner of the said truck and it is alleged that he was also present at the time of the seizure of the truck. The petitioner and other co-accused were arrested by the Custom Personnels and were produced before Special Magistrate (Economic Offences) Rajasthan, Jaipur, which is the concerned Court. The petitioner moved an application under Sec. 457, Cr. P.C. for the delivery of the aforesaid-truck. The said application was rejected by the learned trial Magistrate vide order dated 16.1.1991. The contention of theT learned counsel for the petitioner is that the truck was seized by the custom officers at a distance of hundred kilometers from Indo-Pak border and, as such, no presumption can be drawn that the said goods were to be transported to Pakistan. He further submits that if the truck is kept in the police custody or even in the custody of the Court in the open place, then there are every possibility that by the time when the case is decided finally, it may be completely damaged/destroyed. The learned counsel for the petitioner further submits that the petitioner is the registered owner of the said truck and there is no other claimant, as such it is in the interest of justice that the said truck should be given in his custody on such conditions which may be considered fit in the circumstances of the case.

(3.) Contrary to this, Mr. Praveen Balwada, the counsel for the Custom Department has vehemently opposed the aforesaid prayer. He submits that whether the accused persons shall be convicted or not under the provisions of the Customs Act, is a question to be decided by the Trial Court after recording the evidence. According to him, the petitioner was arrested alongwith the articles for which no explanation was given and the explanation given by them has been found to be false on investigation. He further submits that an order to curb the smuggling activities the petitioner should not be handed over the possession of the truck in question.