ASSISTANT COLLECTOR CUSTOMS JAIPUR Vs. SURAJMAL

JUDGEMENT

(1.) IN Chamber. The relevant facts giving rise to this criminal reference are as follows: The Customs Preventive Staff, Bikaner, on 13-6-72 in pursuance of a search warrant issued by the Superintendent, Customs, Bikaner, took search of the godown of the godown of the business premises of Surajmal located in Fad, Bazar, Bikaner, and seized cloves packed in polythene bag and two gunny bags weighing 49 killos 500 grams, for taking action under the Customs Act as it was believed that the goods were liable to be confiscated On 15-6-72 Surajmal moved an application in the Court of the Sub-Divisional Magistrate that a false case has been foisted against him by the Customs Officer, that he had purchased the goods from Messrs Balkishen Brothers in Delhi and that he had committed no offence. He prayed that the goods seized may be returned to him on security. The learned magistrate entertained the application and issued notice to the Prosecuting INspector. The application was opposed by the Customs Preventive Department. The learned magistrate ordered the counsel for the Customs Preventive Department to produce certain documents. Some of the required documents were produced on 26-6-72. But the learned magistrate was not satisfied and he therefore on 27-6-72 ordered for the production of other documents. Aggrieved by the said order, the Assistant Collector, Customs, went in revision to the Court of Session at Bikaner. The learned Sessions Judge has made this reference recommending that the impugned order dated 27-6-72 calling upon the Customs Preventive Department to produce documents be quashed for it has been passed without jurisdiction.

(2.) THE question that arises for determination in this case is whether the Sub-Divisional Magistrate was competent to entertain the application for disposal of the property seized by the Customs Officers under the provisions of the Customs Act. Sub-sec. (1) of sec. 104 of the Customs Act, 1962, empowers certain customs officers to arrest a person if there is reason to believe that in India or within the Indian Customs waters he has been guilty of an offence punishable under sec. 135. THE person so arrested shall, as soon as may be, be informed of the grounds of such arrest. Sub-sec. (2) of that section provides that every person arrested under sub-sec. (1), shall, without unnecessary delay, be taken to a Magistrate. THEre is, however, no provision in the Customs Act which cast an obligation on a Customs officer to produce the property seized by him under the provisions of the Customs Act, before a magistrate. Chapter XIV of the Customs Act deals with confiscation of goods and conveyances and imposition of penalties. Sec. 122 lays down the powers of various Customs Officers to make adjudication of confiscations and penalties. Sec. 124 provides issue of show cause notice to the owner of the goods before confiscation of goods. Under this section, the owner of the goods seized shall be given an opportunity of making a representation in writing within a reasonable time as may be specified in the notice. Sec. 125 authorises the Customs Officer who adjudges confiscation under the Act to give to the owner of the goods an option to pay in lieu of confiscation such fine as the said officer thinks fit. Sec. 110 (2) provides that where any goods are seized under sub-sec. (l) and no notice in respect thereof is given under clause (a) of sec. 124 within six months of the seizure of the goods, the goods shall be returned to the person from whose possession they were seized. All these provisions clearly go to show that a magistrate has no 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 atleast before the launching of the criminal prosecution.