The Magistrate has the power to retain control over the goods or documents seized under a search warrant issued under S. 172 of the Sea Customs Act and to ensure that his warrant is not abused or made the instrument of harassment.

Headnote:
SEA CUSTOMS ACT - S. 172 - SEARCH WARRANT - CUSTODY OF DOCUMENTS SEIZED - MAGISTRATE'S CONTROL - INSPECTION AND SCRUTINY OF DOCUMENTS - FACILITIES TO CUSTOMS AUTHORITIES.
Fact of the Case:

The appellant, a managing partner of a firm exporting mineral ores, was subjected to a search of his premises under a warrant issued by the Chief Presidency Magistrate, Calcutta, on the allegation that documents relating to illegal exportation of dutiable goods were secreted therein. The Customs authorities seized 959 documents and applied for their custody to facilitate scrutiny. The Magistrate, however, ordered that the documents be kept in the Court's custody and the Customs authorities be given facilities to inspect them in the Court premises.
Finding of the Court:

The Court held that the Magistrate was legally right in retaining control over the documents seized, but he was unduly narrow in his view in affording facilities for inspection and scrutiny. The Court directed that due facilities for inspection should be afforded to the Customs authorities in the shape of a separate room and suitable furniture and time extended beyond the ordinary Court hours.
Issues: 1. Whether the Customs authorities are entitled to the custody of records seized by them under a search warrant issued under S. 172 of the Sea Customs Act, and the Magistrate cannot deny them the right to carry away the documents for their scrutiny. 2. Whether the order of the Chief Presidency Magistrate gave inadequate facilities to the Customs authorities for inspection and scrutiny of the documents.
Ratio Decidendi: 1. The Magistrate's jurisdiction under S. 172 of the Sea Customs Act and the Criminal Procedure Code is both to issue the search warrant and to ensure that it is not abused or made the instrument of harassment. 2. The second paragraph of S. 172 of the Sea Customs Act, which applies the Criminal Procedure Code, intends to apply not only the Code but also the forms prescribed, and if the form says that the goods or documents should be produced before the Magistrate to be dealt with under his direction, then that effect necessarily flows from the words of that Section.
Final Decision: The Court set aside the order for the handing over of the documents to the Customs authorities and directed that due facilities for inspection should be afforded to them in the shape of a separate room and suitable furniture and time extended beyond the ordinary Court hours. The inspection should be carried on in the presence of a Court official, and adequate privacy for questioning witnesses etc., should be afforded to the Customs authorities, whenever they find it necessary.

Judgment

HIDAYATULLAH, J. : This appeal is by certificate under Art. 134(1)(c) of the Constitution granted by the High Court of Calcutta against its judgment and order dated July 1, 1960. The appellant, Mohammad Serajuddin, is the managing partner of Messrs. Serajuddin and Co., of No. 19A, British Indian Street and of P-16, Bentick Street, Calcutta. The said firm carries on business as exporters of mineral ores, and also possesses some mines. The business of the appellant involved the export of manganese ore. Till April, 1948, there was no export duty on manganese ore. On April 19, 1948, export duty at ad valorem rates was imposed on manganese ore. This was withdrawn in August, 1954, but was re-imposed in September, 1956 and was withdrawn again in November, 1958. During this period, the appellant exported manganese ore, among other mineral ores.

2. On November 28, 1959, an application was made under S. 172 of the Sea Customs Act to the Chief Presidency Magistrate, Calcutta requesting that warrants be issued to search the two premises already mentioned, on the allegation that documents relating to and connected with "illegal exportation dutiable goods which were actually exported in contravention of the Sea Customs Act" were secreted in the above premises. The Chief Presidency Magistrate issued two warrants returnable on December 5, 1959. Subsequently, time for return wad extended to December 15, 1959. It appears that the search was carried with somewhat undue zest, and the Chief Presidency Magistrate, on December12, 1959, limited the search to documents relating to manganese ore and also fixed the time of the day during which the search could be made. Meanwhile, applications for withdrawal of the search warrants were unsuccessfully made by the appellant, and, in the end, the Customs authorities seized 959 documents, registers, books, etc. The Customs authorities wished to retain these documents in their own custody for the purpose of scrutiny, and on December 15, 1959, an application was made to obtain this permission. On the same day, the appellant also applied for return of documents unconnected with the export of manganese ore and for retention of the remaining documents in the custody of the Court. The Chief Presidency Magistrate passed an order the same day that the documents would be kept in the custody of the Court and the Customs authorities would be given facilities to inspect them in the Court premises. This inspection commenced on December 17, 1959.

3. We may now pass over applications made by the appellant for the return of documents unconnected with manganese ore and by the Customs authorities for extension of time and for handing over all the documents to them. Suffice it to say that the Magistrate declined both the requests, and extended time for inspection till April 9, 1960. On February 6, 1960, the Customs authorities filed a last application for getting custody of the documents and for certain facilities for proper inspection in secrecy, if the inspection was to be done in the Court premises. This application was summarily dismissed by the Magistrate the same day.

4. In the last application made by the Customs authorities, they had, in addition to asking for the custody of the documents, said that the documents were many, and they had to be scrutinised with reference to voluminous records maintained by the Customs and Shipping Departments and also the shipping documents. They also said that certain witnesses and informers had to be questioned, and that it was not possible to complete the work within reasonable time, if the inspection had to be carried on, not only during Court hours but in the presence of the representatives of the appellant. They had, in the alternative, asked for a separate room where the scrutiny and discussions between the Customs Officers could take place in privacy and for facilities for inspection of the records even after Court hours, because during the day, the staff at their disposal w

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